The judge who saw the witnesses and heard the testimony made certain findings of fact as a bаsis for the decree, and these must stand unless they are clearly erroneous. In our opinion they are amply sustained by the reported evidence.
The plaintiff Allen, as trustee for himself and other beneficiaries, owned a tract of about twenty acres in the city of Worcester, and laid it out as a residential section known as Montvale. Sixty-five thousand dollars were expended in constructing streets, sewers, granolithic walks and other improvements, and in planting shade trees; and in all the deeds of lots sold there were inserted conditions and restrictions as to the kind, cost and use of the buildings to be erected, and their distance from the street line.
In August, 1900, the plaintiff Allen, trustee, conveyed to one Jesse P. Taber lots 76 and 77 on the Montvale plan. On lot 76 was a house that was on the “Warren purchase” when the trustee bought that and the “Whitman tract,” from which tо develop Montvale. This house had been a two-family building, but Taber changed it over intо a one-family residence and occupied it as such. In his deed was the following provision: “Said tract is conveyed subject forever to the following conditions and rеstrictions. 1st. On neither lot 76 or 77 shall there be built or maintained more than one dwelling house, nоr a dwelling house costing less than thirty-five hundred ($3,500) dollars (except that the present house now standing may be maintained there as the sole house on its lot), nor shall such building be cоnstructed or
There is no merit in the contention of the defendants that the specific аnd limited exception in the deed to Taber, permitting the maintenance on lot 76 of the existing building, exempts that building from all restrictions; and we are of opinion that the restrictions considered as a whole prohibit the construction and maintenance on the lot of a “three decker” tenement house, regardless of the extent to which the old building may enter into its construction. Accordingly the decree in favor of the рlaintiff Allen was warranted unless he was guilty of loches; and the evidence sustains the judge’s finding that he was not. He first heard of the alterations from Herbert A. Pratt, one of the benefiсiaries of the trust; and Pratt testified that he first heard of them on Wednesday, December 14; that on the next Saturday he notified one Lassalle, who was working on the house, and on thе Monday following went over the matter with the defendant, Charles L. Barrett. Stewart v. Finkelstone,
As to the other рlaintiffs it is enough to say that the evidence warrants the findings of the trial judge, in effect that they were owners of other lots on the Montvale plan, that the restrictions in their deeds from the trustee were similar to those in the Taber deed, and were imposed as part of a general plan for the benefit of the several lots; that they had bought the land and erected residences thereon in compliance therewith; and that they were not guilty of loches. Under such facts the restrictions give to each grantеe a right in the nature of an easement which will be enforced in equity against the grantee of another of the lots, although there is no direct contractual relation between the two grantees. And the fact that the restrictions are not exactly the same in all the deeds does not tend to show that .the restriction in question was not intended to apply alike to all. Hano v. Bigelow,
It is urged by the defendants that the decree for a mandаtory injunction should not issue, because they were not aware of the restrictions in thе deed to their father, under which 'they claim. But as they saw fit to act in ignorance of their own rights, and without considering the rights and interests of the residents of this neighborhood, the financiаl loss should be borne by them and not by the plaintiffs, who are in no way responsible for it. The relief granted is such as is usual in similar cases. Kershishian v. Johnson,
Decree affirmed with costs.