185 Mass. 589 | Mass. | 1904
This is a petition under St. 1889, c. 442, now R. B. c. 182, § 11, in which the petitioner seeks to have it decided that the equitable restriction is no longer in force which was created by two deeds under which it claims title executed and recorded in 1843. The land of which the parcel now owned by the petitioner was then a part was divided at that time into building lots by the owners of it, who caused the plan of it, dated October 13, 1843, to be made and recorded. The land is there divided into six lots, with a frontage on Beacon Street varying from twenty-seven to thirty-three feet. There is a line on the plan entitled “ Front line of buildings,” which is fifteen feet back from the northerly line of Beacon Street at its easterly end and twenty feet back from that northerly line at its westerly end. All six lots were conveyed by deeds dated October 27, 1843, and acknowledged, two on November 1, one on November 9, one on November 10, one on November 13, and one on November 16. The deeds under which the plaintiff claims title were acknowledged on November 9 and 13. In the deed of lot 2 is this clause: “ But this conveyance is with the restriction that the front line of the house to be built on the lot thereby granted shall be set back from the northerly line of Beacon street as marked and laved down on said plan, except that said Preston shall elect to build a house with a swelled front and in such case he may place the extreme swell three feet out from said front line, and the partition walls above the cellar floor shall be of the thickness of one brick and a half, unless the owners of the adjoining lots shall otherwise agree with said Preston and the walls shall be erected on the dividing line of the lots, one half on each lot, and if the owner of either lot shall refuse to build on the request of the owner of the adjacent lot, the latter shall have the right to erect the wall and the owner shall pay
The petitioner is the owner by mesne conveyance of the whole of lot 1, and all of lot 2 except the northerly jog and one foot on the east which were conveyed to the owner of lot 3 in November, 1843.
It appears that six private four story brick dwelling houses, each with a swell front complying to the restrictions, were erected on the several lots immediately after the delivery of the deeds, and were occupied as residences until 1884 in case of lots 1 and 2, when those lots (with the negligible exceptions already stated) were sold to the petitioner, and in case of lots 3, 4 and 5 until they “ were removed recently and the Hotel Bellevue, an eleven (11) story steel frame structure, [was] erected in their place and upon the adjacent part of lot 7, while that on lot six (6) has been lately increased two stories in height and otherwise altered to adapt it to use in connection with said hotel.”
The petitioner concedes that the two lots now owned by it were orginally subject to an equitable restriction imposed for the benefit of the other four lots, but it contends that this restriction should be construed as the restrictions there in question were construed in Hubbell v. Warren, 8 Allen, 173, Hamlen v. Keith, 171 Mass. 77, and Boston Baptist Social Union v. Boston University, 183 Mass. 202, namely, to be restrictions confined to the first building erected, and which expired when that building was torn down.
The two dwelling houses erected on the two lots now owned by the petitioner were torn down, as we have said, in 1884, and
In each of the three cases already mentioned as cases relied on by the petitioner there was some one of several considerations none of which are in the case at bar.
In Hublell v. Warren, the agreement relied on was not found in the deed of conveyance but was in the form of a collateral oral agreement. What the exact terms of that agreement were did not appear.
In Hamlen v. Keith, there was no equitable restriction providing in terms for a building line. To make out such an equitable restriction, the plaintiff relied on a common law condition imposed in 1795, that “ all buildings to be erected on the lands sold by virtue of this vote shall be regular and uniform, and of brick or stone, and covered with slate or tile, or some materials that will resist fire.” The conclusion of the court is summed up in these words: “We are of opinion that the words are given sufficient force if they are confined at most, so far as the present question is concerned, to the original construction of the buildings first erected, — those which it was expected would be erected and which were erected in fact soon after the town had made its sales. It seems to us that it would be going too far to interpret the words as binding the owner of every lot into which the land might be cut up to adhere for all time, and under whatever change of conditions and circumstances, to a building line other than that of the conveyances, determined by the accident of what the first builder chose to do.”
In Boston Baptist Social Union v. Boston University, the grantor of the deed containing the restriction (which the defendant in that case contended it was entitled to enforce) at the date of that conveyance did not own the adjoining land afterwards acquired by the defendant. The court passed by that difficulty of the defendant in making out its right (a difficulty like that dealt with in the subsequent case of Hazen v. Mathews, 184 Mass. 388,) and assumed that it was not of itself fatal. But that fact constituted an important consideration in construing the words “ the house to be erected,” which were the words of that agreement as they are of the agreement now under consideration.
In Kramer v. Carter, 136 Mass. 504, 506, W. Allen, J. stated that “ in that deed were certain conditions which operated as restrictions, and created a perpetual servitude upon the land in favor of adjoining lands, one of which was that no building should ever be erected upon a certain part of the land.” It is not necessary to inquire whether that referred to the set back in front or to the restriction forbidding any buildings in the rear of the lot. It is evident that the terms of the “conditions” creating the restrictions there in question, when taken as a whole, are not sufficiently near those now before us to make that expression of opinion of value here. It should be added that in Sanborn v. Rice, 129 Mass. 387, and Hamlen v. Werner, 144 Mass. 396, the things complained of were additions to the original buildings. For that reason the question whether the restrictions applied to all buildings whenever erected or were confined to the building first erected did not arise, and there is no expression of the opinion of the court upon it.
The question in Jeffries v. Jeffries, 117 Mass. 184, 189, also relied on by the defendants, was not as to the duration of the restriction. The word “ never ” in the clause creating the restriction disposed of that. The question in that case was
Finally, it has been laid down by this court that in case of doubt a clause creating an equitable restriction is to be construed against the grantor and in favor of the grantee’s right not to have his land restricted. Stone v. Pillsbury, 167 Mass. 332. Welsh, petitioner, 175 Mass. 68. Boston Baptist Social Union v. Boston University, 183 Mass. 202.
The duration of an equitable restriction is a question of the intention of the parties, to be determined by construing the words used in the light of attending circumstances.
The line which is described in the deed is characterized on the plan referred to in the deed as “ Front line of buildings.” Had the clause in the deed creating the restriction gone no farther than to adopt that characterization, the case would be a very different one from that now before us, and might well be held to apply to all buildings thereafter erected on the land, having regard to the consideration which was decisive in Jeffries v. Jeffries, and in Chase v. Walker.
But in determining what the extent of the restriction is, the language of the clause creating it must be decisive if (as is the case here) it undertakes to define in terms its extent. In the case at bar the clause provides “ that the front line of the house to be built on the lot thereby granted shall be set back from the northerly line of Beacon street as marked and laved down on said plan.” These are the exact words of the clause in
The conclusion cannot be avoided that, as matter of construction of this clause, the restriction created by it does not go beyond “ the house to be built ” at that time. If the plan imports more than the deed, the provisions of the clause of the deed creating the restriction in which the parties have undertaken to define the extent of it must prevail over the characterization of the line on the plan referred to in the deed. The habendum clause by which the estate conveyed “ subject to the restrictions ” aforesaid is limited to the heirs and assigns of the grantees finds "full scope in the possibility of the buildings lasting beyond the lives of the several grantees and of the land being built upon by persons claiming under the grantees and not by the grantees themselves.
It may well be assumed that the restrictions in question were assented to in anticipation of the erection of the uniform block of six four story private dwelling houses which were erected “immediately after” the deeds of the six lots were given, and that all the parties thought it to be the wisest course to limit the restrictions to the life of those houses which were not likely to be torn down for many years and which in fact stood, those on lots 1 and 2 for forty years, and those on 3, 4, and 5 for more than forty year's, while that on lot 6 is still in existence. See in this connection Boston Baptist Social Union v. Boston University, 183 Mass. 202, 204, 205. The conclusion reached is in general accord with the rule of construction since adopted by the Legislature by St. 1887, c. 418, now E. L. c. 134, § 20.
There are cases where covenants in terms somewhat like the clauses creating this equitable restriction have been held to be covenants personal to the parties. See Hutchison v. Thomas, 190 Penn. St. 242; In re Fawcett, 42 Ch. D. 150; Clark v. Devoe, 124 N. Y. 120.
In the construction which we have given to these deeds it is nob necessary to consider whether in such a proceeding as that now before us considerations such as were held to be decisive in Jackson v. Stevenson, 156 Mass. 496, can be considered.
Decree accordingly.