Now February 21, 1916, the proceedings before the Alderman are, therefore, reversed and judgment entered in favor of the plaintiff in error and defendant below and against the defendant in error and plaintiff below, for want of jurisdiction.

FAAET, ET AL., vs. FISHER.

In the absence of restrictions in the title, the owner of a property has a legal right to use same for building purposes even to the front street line thereof.

A butcher shop does not constitute an offensive business in fact or in law.

The law will not undertake to correct a mere breach of courtesy by a neighboring lot owner.

The location and establishment of a particular business may render a community less desirable for residential purposes but unless the discomfort or annoyance is of such a character as to interfere with the ordinary use and enjoyment of another's dwelling house, so as to cause serious annoyance and disturbance, the occupants of an adjoining dwelling have no cause of action.

In the Court of Common Pleas of Montgomery County. No. 1, December Term, 1915. Hearing on bill, answer, replication and proofs (in equity).

Francis R. Taylor and George C. Corson, Attorneys for Plaintffs.

Conrad S. Sheive, Attorney for Defendant.

Opinion by Swartz, P. J., January 22, 1916. The plaintiffs and defendant are owners of lots and dwelling houses located on Central Avenue, in the Village of Cheltenham. The defendant is making changes and additions to her house in order to open a butcher shop. The plaintiffs contend that the erection of a building for a butcher shop is in violation of the covenant in defendant's deed. This restriction forbids "the erection and use of any building or buildings for offensive occupation whatsoever." It is also claimed that the defendant has no right to extend her building to the street line.

FINDINGS OF FACT.

1. Cheltenham Village is an old settlement and was formerly known as "Mill Town." It is located in the northeastern corner of the Township of Cheltenham.

Farmlands, to the north of the old settlement, were divided into building lots and the village rapidly extended northward. This new part of the town has about 200 houses. The population of the whole village is over 1500.

2. Central Avenue is the principal or main street running through the entire village. A double dwelling house is located at the southeast corner of Central Avenue and Beecher Avenue. The corner house of this construction is owned by the defendant and the other member of the double dwelling is owned by the plaintiff, Joseph R. Faaet. The house of the plaintiff, Alfred A. Johnson, is erected on the lot adjoining the Faaet property. The Johnson lot has a frontage, on Central Avenue, of 100 feet, and the defendant's corner lot has a frontage of 25 feet, on the same avenue. Mr. Faaet's lot adjoins and has a front of 25 feet.

3. The village, including the new settlement, is made up of comfortable homes erected on the farm tracts, subdivided into building lots. Many of the houses are double dwellings. The buildings, with some exceptions, are not very expensive. Mr. Johnson's house is one of the best, but the cost of his grounds and improvements did not exceed $7500.

4. The houses on the northwest side of Central Avenue, in the new settlement and opposite to the plaintiff's houses are erected on a farm subdivision requiring all dwellings to be set back sixteen feet from the street. This restriction, however, was not fully observed by some of the lot owners fronting on Central Avenue, between Beecher and Franklin Avenues, nor in the adjoining block. No such restriction is fastened on the farm subdivision located on the southeastern side of Central Avenue. All the lot owners, however, on that side of the street, in the two blocks between Franklin and Jefferson Avenues, including the plaintiffs, voluntarily set back their buildings, not less than sixteen feet from the street. No uniform building line was observed. The distances vary and run from sixteen to twenty-five feet. There is no evidence that these buildings were set back under any mutual contract made by the lot owners.

5. The lot owners, on the farm tract along the southeast side of Central Avenue, that is, on the plaintiff's and the defendant's side-have a restriction in

their deeds which reads as follows: "No tavern or building for the sale or manufacture of beer or liquor of any kind or description, no court houses, currier establishments, poudrette, neat's foot oil, lamp black, gun powder, glue, starch, soap or candle manufactory, tallow chandlery, bone boiling establishment, chemical laboratory, or establishment for the keeping of pigs or any building or buildings for offensive occupation whatsoever, shall at any time hereafter be erected or used upon the hereby granted premises or any part thereof, and also to the condition that no portion thereof shall, at any time hereafter, be used as a cemetery or for burial purposes, and that no dwelling house to cost less than $2000 shall be erected on any part or parcel of the hereby granted premises.'

6. On the northwest corner of Central and Beecher Avenues there is a drug store and adjoining it, on the north, there is a grocery store. These buildings stand back from the street, sixteen feet, as required under the restrictions fastened on the lands on that side of Central Avenue.

There was also, for three years or more, a shoemaker shop belonging to the house, at the southwest corner of Central and Beecher Avenues. The shop fronted on Central Avenue. The business is now conducted on the same lot, but from a shop on the side street.

A butcher shop and general store is located at Central Avenue and Myers street, four or five squares to the south of Beecher Avenue. This building is out on the street line. It does a good butcher business, and is patronized by some of the residents in this newer part of the village.

7. The defendant, through her manager, Mr. Hazelton, is constructing a building to carry on a butcher shop. Her house wall now stands back 25 feet from the street, but she proposes to tear down the front wall of the house and erect a new brick structure twelve feet high, extending from the house to within one foot of the street. The new structure will run along the property line between the defendant and the plaintiff, Mr. Faaet. Part of the front room of the house will be used for the location of a refrigerator. The equipment is to be of the highest standard sanitation, and will be installed by the

Ridgway Refrigerator Company. The entrance will be by a door in the corner or angle of the building, at the intersection of the street lines.

8. The fact that the new structure runs out to a point one foot from the street line will obstruct the view to the north from the yard and lower part of the house of the plaintiff, Mr. Faaet, and the same is true to some extent, of the house of Mr. Johnson. This interference with the view is the main objection on the part of the plaintiffs to the proposed butcher shop.

9. It is also claimed that a butcher shop gives out bad smells, and that the business will bring annoyance and discomfort to the neighborhood.

The weight of the evidence shows that no annoying smells proceed from a butcher shop, if it is conducted with a careful regard for cleanliness and if sanitary precautions are observed under a proper equipment with approved standard appliances. If the offal from the meats is not properly cared for, it will become rank and give forth bad smells.

The evidence shows that the dealers in offal and waste, in removing the materials from the butcher shops, use conveyances that give forth very bad odors. This is due to the fact that the wagons and trucks are not properly cleaned and is not due to the waste sold by the proprietor of the butcher shop, if he gives proper attention and care to it.

10. This butcher shop will be a convenience and accommodation to the village. It is a business that naturally and usually follows a settlement such as is found in this neighborhood. These trade shops will locate along the main streets in a village. Central Avenue is the principal thoroughfare of the town.

There is no evidence that Cheltenham Village differs in its characteristics or in its residents from the conditions usually found in other villages. The house constructions were not limited to expensive suburban mansions. The cost of dwellings was not to be less than $2000. The village is near a large city and, no doubt, there are many residents who are employed in this city, and who selected these lots to erect and enjoy comfortable country homes. But this fact, unless careful restrictions accompanied the deeds to all purchasers, will not

exempt the residents from the usual conditions and surroundings that necessarily follow a country village settlement.

1. The weight of the evidence indicates that the market value of the plaintiffs' properties will be somewhat depreciated by the butcher shop, but this is due mainly to the fact that the said shop will be located on the street line and obstructs, in part, the view to the north.

The location of a butcher shop in the section of a village theretofore used exclusively for residential purposes, may affect the value of properties in the immediate vicinity of the shop, but the same condition would follow from a similar location of other stores.

2. A butcher shop is not a "building for an offensive occupation." It may become offensive through the negligence of the proprietor or through the failure to provide modern equipments, or through the failure to follow modern sanitary methods in conducting the busi

ness.

CONCLUSIONS OF LAW.

1. In the absence of restrictions, in her title, the plaintiff has the legal right to use her lot for building purposes, even to the front street line of Central Avenue.

2. A butcher shop conducted under the methods which the defendant proposes to follow and under the equipments which she agrees to provide, does not constitute an offensive business in fact or in law, nor under the restrictions specified in her title.

3. The defendant's proposed addition to her house, extending from cellar wall to within one foot of the street line, does not constitute a nuisance, even if it does obstruct the view from the plaintiff's houses, or from the houses of others who set their buildings back from the street line. Even if it is an unneighborly act, it is not an unlawful one. The act may depreciate the property of the plaintiffs, but they are without remedy.

4. If the defendant, her employees or lessees so conduct or maintain the butcher shop that it will become a nuisance to the public, or to the neighbors, the plaintiffs have their remedies whereby the nuisance can be abated.

5. The bill should, therefore, be dismissed, at the costs of the complainants.