Keith v. Goldsmith

Mr. Justice Magruder delivered the opinion of the court: By the contract entered into between appellant and George A. Goldsmith, the latter and his assigns had a right to erect steps, porches and bay windows in the space west of the building line agreed upon. The appellees commenced the erection of a structure upon their lot, the plan of which shows that there is to be, as a part of that structure, a bay window and porch and front steps west of the building line and within the space reserved in front of the building line. The main question in the case is whether the projection or extension, which the appellees have commenced to erect, is or is not a bay window within the meaning of the contract. The material part of the agreement provides that “no building shall be erected on the west twenty-three feet and five inches of the premises above described (steps, porches and bay windows excepted).” Appellees claim that the contemplated improvement comes within the exception named in the contract, while appellant contends to the contrary. The agreement contains no specifications and no restrictions or limitations upon the character or size of the projections, but provides only that they shall be either steps, or porches, or bay windows. The bay window, so-called, whose erection has been begun, rests upon foundations built into the ground and extends seven feet and seven inches beyond the building line. It is a semi-polygonal projection upon the northerly end of the improvement. Counsel for appellant recites certain definitions of a bay window, which describe it as a window forming a recess in a room, and projecting outward from the wall either in a rectangular, polygonal or semi-circular form. The contention of the appellant, as we understand it, is that a bay window projects from the general surface of the house, but does not rise from the ground or from a foundation wall in the g'round. On the other hand, counsel for appellees refer us to definitions of a bay window, which describe it as a window forming a recess in a room, projecting outward, and rising from the ground or basement on a plan rectangular, semi-octagonal, or semi-hexagonal, but always straight sided. The definitions, referred to by the appellees, describe such a window as resting on the ground, as affording a view along the face of the walls on each side, as being oftentimes as large as a moderate sized room, with a projection even greater than its measurement along the wall, and as being continuous with, and a prolongation or widening of, the room. So far as we are able to judge from the definitions presented to us by counsel on both sides, we are satisfied that the bay window, proposed to be erected by appellees, comes within the meaning of that term as used in the contract, and that appellees have not been guilty of any violation of the contract. The mere fact, that the bay window rises from a foundation in the ground, instead of being a mere projection outward from the wall some distance above the ground, does not make it any the less a bay window within the ordinary meaning of that term. Counsel for appellant refers to various cases where agreements were made in regard to building lines, but in none of the cases, so referred to, was there the same exception, which is contained in the contract in the case at bar. The contracts in the cases, referred to by counsel, did not authorize the parties to erect steps, porches and bay windows within the reserved space. Of course, if there had been no exception as to steps, porches and bay windows in the present contract, then it would be a serious question whether the contract has not been violated by the erection of these projections within the reserved space. But, by reason of the absence of such an exception, the cases referred to have no application here. Bidding, as we do, that there was no violation of the contract, we deem it unnecessary to consider the further, propositions submitted by appellant’s counsel, to the effect that appellant is entitled to a mandatory injunction, requiring appellees to remove the parts of the building, alleged to be erected beyond the building line contrary to the covenant in the contract; and to the effect that appellant is entitled to a decree, setting aside the contract. The decree of the court below dismissing the bill is affirmed. Decree affirmed.