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Fey v. Swick

454 A.2d 551, 308 Pa. Super. 311, 1982 Pa. Super. LEXIS 5952
CourtSuperior Court of Pennsylvania
DecidedDecember 17, 1982
Docket1252
StatusPublished
Cited by8 cases

This text of 454 A.2d 551 (Fey v. Swick) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fey v. Swick, 454 A.2d 551, 308 Pa. Super. 311, 1982 Pa. Super. LEXIS 5952 (Pa. Ct. App. 1982).

Opinion

WIEAND, Judge:

In this class action brought on behalf of 62 owners of residential lots, the trial court enjoined the construction of a 56 unit apartment complex on a ten acre tract of land owned by the appellant, John M. Swick. The principal issue on appeal is whether the members of the class who own lots in a separate subdivision can enforce building restrictions imposed upon the ten acre tract by a common grantor in a prior deed. The trial court held that the building restrictions were enforceable. We affirm.

The ten acre parcel of land which is the subject of this controversy was part of a 60 acre tract in Pleasant Township, Warren County, owned by Margaret E.I. Newbold. On August 7, 1950, Ms. Newbold recorded a plan for a 64 lot residential subdivision, to be known as the Irvine Plot, in the southeasterly portion of the larger tract. The plot plan was accompanied by a declaration imposing various restrictions, among them restrictions limiting the use of lots for residential purposes and authorizing only the erection of a single private residence upon each lot. 1 Five years later, *313 Esther L. Newbold, to whom title to the residue of the 60 acre tract had descended upon the death of her sister, Margaret, created an addition to the original subdivision. This First Addition, as it was called, consisted of 19 lots, all of which were subjected to the same building and use restrictions as the Irvine Plot. A Second Addition to the Irvine Plot was created in 1959. This addition contained 16 lots, including several lots from prior subdivisions, and was subjected to the same restrictions imposed upon the original subdivision lots. Both the First and Second Additions were located to the north of the original Irvine Plot.

The ten acre tract of land with which we are here concerned was conveyed by Esther L. Newbold to Sarah Swick, appellant’s mother, on December 23, 1958. In addition to land not previously subdivided, this tract contained four lots and a portion of a fifth from the First Addition. It lay generally in the southwest corner of the original tract of 60 acres. The grantor imposed upon the ten acres a series of restrictions and covenants intended to run with the land. Two of them provided:

1) The premises are conveyed for residence purposes only and no structure other than ... single private residences shall be erected, placed or permitted on the premises conveyed ....
10) Only one dwelling house shall be built on each 11,250 square feet of land.

The appellant acquired title to this ten acre tract by deed, dated January 10, 1964, from his mother. That deed contained the same restrictions as the Newbold-Swick deed of 1958.

The ten acre tract, although occupying the southwest corner of the original 60 acre tract, was irregular in shape and was separated from the initial Irvine Plot by seven lots. These lots were used to create a Third Addition by Sarah *314 Irvine Roberts and John L. Welsh, Jr., devisees of Esther L. Newbold, who died in 1963. The lots in the Third Addition were subjected to the same building and use restrictions.

By two deeds in November, 1966 and February, 1967, Sarah Irvine Roberts and John L. Welsh, Jr. conveyed to Giles Schutte and wife a tract of land adjacent to the northern property line of appellant’s ten acre tract and the western boundary of the Second Addition. The deed for this tract contained no restrictions, and Schutte caused a 64 unit apartment complex to be constructed thereon.

Meanwhile, it should also be observed that in May, 1957, a tract of land located in the northeast corner of the 60 acre tract had been conveyed free of restrictions by Esther L. Newbold to Warren Industrial Development Authority. This tract, however, was not contiguous to the several residential subdivisions created in the southern part of the larger tract. The intervening land was conveyed by Roberts and Welsh to Alexander Courts, Inc. by deed dated November 1, 1967. This land was subsequently condemned for a limited access highway which now divides the northern and southern segments of the 60 acre tract. Appellant’s exhibit depicts the conveyances from and division of the 60 acre tract as follows:

*315

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Bluebook (online)
454 A.2d 551, 308 Pa. Super. 311, 1982 Pa. Super. LEXIS 5952, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fey-v-swick-pasuperct-1982.