Allen v. City of Boston, 137 Mass. 319

Allen v. City of Boston

137 Mass. 319 | Mass. | 1884

W. Allen, J.

Evidence that the land was subject to an easement or restriction was clearly competent, and the objection to its admission has not been pressed in the argument.

*321The instructions asked, — “ that the city cannot have the value of the whole estate reduced by any deductions on account of building restrictions. Such restrictions, if they have any value, belong to the party by whom they were created, or his representatives, and if they do not appear and claim them, then the restrictions must be deemed to be waived in favor of the general owner,” — were properly refused. If any right was waived by the owner in not appearing to claim it, the waiver would seem to be in favor of the respondent rather than of the petitioners.

But it does not appear that any interest in the land was reserved to the grantor in the deed creating the restriction. The words “building restrictions,” in the prayer for instructions, would seem rather to refer to restrictions put upon the land in question, in connection with like restrictions upon other neighboring lots, and which would confer upon the owner of each lot a right or interest in the nature of an easement in all the other lots which were conveyed subject to the same restriction. This was the construction given to such a restriction in Parker v. Nightingale, 6 Allen, 341, in which case Chief Justice Bigelow said: “ Thus it entered into the consideration which each purchaser paid for his land, either by enhancing its price in view of the benefit secured to him in the restraint imposed on adjoining owners,, or by lessening its value in consequence of the limitation affixed to its use.....In strictness, perhaps, the right or interest created by the restrictions, being a qualification of the fee, did not pass out of the original grantors, and now remains vested in them or their heirs. But, if so, they hold it only as a dry trust, in which they have no beneficial use or enjoyment, the entire usufruct being in their grantees, .... for. whose use and benefit it was intended.” The case at bar cannot be distinguished from Tobey v. Taunton, 119 Mass. 404.

The fixtures could only be considered in estimating the value of the land and building, and the instructions of the court upon that subject were correct. Edmands v. Boston, 108 Mass. 535, 549. Exceptions overruled.