Ogontz Land & Improvement Co. v. Johnson

Opinion by Mr. Justice Mitchell, Both the bill and the answer are in very brief and general terms, and the facts in regard to the porch in controversy do not therefore appear with precision as to details. The answer however admits that the porch is to be a permanent part of the house, built upon brick foundations, and projecting to within seven feet of the fence line. Prima facie this is in violation of the building restriction. The terms of this are not in dispute. They are that “ all buildings upon the said lots shall be erected not less than fifteen feet back from the fence line.” The inten [181] tion of this clause is plain. It is to widen the entire space between the house lines and secure the light, air, and open view incident to a wide street. The language is “ all buildings,” and that means all substantial parts of all buildings. While merely incidental encroachments on this space by steps, or eaves, or ornamental projections might not amount to violations of the agreement (see City of Phila. v. Presbyterian Board of Pub., 9 Phila. 499) yet a porch extending the whole width of the house as a substantial and integral part of it, is clearly so. If it can occupy eight feet of the reserved space, it could as well occupy the whole fifteen feet to the fence line, and thereby destroy the open uniform general effect meant to be sécured. We agree with the learned judge below that “ whether a porch or piazza attached to a dwelling house is a building or a constituent part of the dwelling depends on the manner of its construction, and the uses to which it is to be applied,” but we do not think the fact of its being open or inclosed is the ruling factor. It is one item of evidence only, and each case must depend on its own circumstances as shown by the whole evidence. As already said the details as to this porch do not precisely appear, but it is to be gathered from the answer and the arguments of both parties that it is an integral part of the house, built with it, on brick foundations, roofed, and permanently attached to the whole width of the front. The fact that it is open at the sides and in front will not save it from being an obstruction to light, air and uniformity of effect, and as such contrary to the restriction. Decree reversed, bill reinstated, and injunction directed to be awarded, with costs.