Bailey v. Agawam National Bank
76 N.E. 449
Mass.
1906
Check Treatment
Lobring, J.

[After the foregoing statement of the case.] 1. As matter of construction of the clause here in question, it was (in our opinion) the intention of the parties to it that the rights in the passageway ten feet wide, there provided for, should be rights in perpetuity, and for the benefit of the two adjoining lots of land. If this clause is to operate in favor of the grantor *23Moore by way of reservation or exception, this intention fails, so far as half the passageway, to wit, lot G B C H is concerned, for lack of the word “ heirs.” If it is to operate by way of reservation, that is to say, by implied grant by the grantee to the grantor, the word “ heirs ” is necessary. Ashcroft v. Eastern Railroad, 126 Mass. 196. It cannot operate under the Massachusetts doctrine by way of exception, because it is a new way not existing in law or in fact (that is to say, physically on the ground) at the date of the conveyance. Simpson v. Boston & Maine Railroad, 176 Mass. 359, and cases there cited.

But the clause in question does not purport to be a conveyance by way of exception or reservation; it purports to be a contract, which, as we have said, as matter of construction provides for a passageway in perpetuity for the benefit of the two adjoining lots of land. And it is a contract of which the grantee Henry’s successors have taken with notice. Having taken their estate with notice of it, Henry’s grantees are bound in equity to perform it. It was on this, ground, (namely, that the subsequent grantee took with notice of the prior agreement imposed in perpetuity for the benefit of adjoining lands,) that the right to equitable relief by specific performance of a contract restricting the use of land in respect to the buildings to be erected on it and the use to he made of them was established when both the land benefited and that subjected to that burden had passed to grantees. Whitney v. Union Railway, 11 Gray, 359. Tulk v. Moxhay, 2 Ph. 774. And see 17 Harvard Law Review, 174.

It is on its face a novel proposition that there should be a right to a passageway by way of equitable restriction over lot A in favor of lot B. But in case the owner of lot A has made an agreement in writing, but not under seal, (and for that reason not capable of being held to be a grant,) that the owner of lot B shall have a right of way over it in perpetuity, there is nothing anomalous in holding that this agreement should be specifically enforced in equity against all taking lot A with notice of that agreement in favor of the owner of the land for the benefit of which the agreement was made. In such a case it may be said and is said that there is an equitable restriction on A in favor of B. But that is apt to be misleading. The so called equitable restriction results from the fact that equity will enforce the *24agreement against those taking with notice in favor of the then owner of the land to be benefited. Equity does not enforce the agreement because there is an equitable restriction. See Whitney v. Union Railway, Tulk v. Moxhay, and Harvard Law Review, ubi supra. This perhaps was lost sight of in the opinion in Hazen v. Mathews, 184 Mass. 388.

Again, there is nothing anomalous in going into equity to enforce a right to a passageway. An injunction against obstructing it is the usual remedy invoked by the owner of a legal easement to that effect. And many an indenture under seal as to setbacks and restrictions on the kind of buildings to be erected and the use to be made of them has been held to create a legal easement although the rights under them undoubtedly are usually spoken of as equitable restrictions. For instances see Hogan v. Barry, 143 Mass. 538; Ladd v. Boston, 151 Mass. 585.

It remains to say a word of the cases in which a reservation has been held to be for life only, for lack of the word “ heirs.”

Claflin v. Boston & Albany Railroad, 157 Mass. 489, was an action of tort for obstructing a right of way. To maintain a way in that case it was necessary to make out a legal easement. The same however is not true of Ashcroft v. Eastern Railroad, 126 Mass. 196, or of Simpson v. Boston & Maine Railroad, 176 Mass. 359. In Simpson v. Boston & Maine Railroad there is nothing to show that the clause which was in terms a reservation in favor of the grantor was intended to be perpetual. Neither one of these two things however is true of Ashcroft v. Eastern Railroad, 126 Mass. 196. The plaintiff in that case brought a bill in equity, and the clause was “ reserving to myself the right of passing and repassing, and repairing my aqueduct logs forever, through a culvert six feet wide and rising in height to the superstructure of the railroad, to be built and kept in repair by said company.” We need not now determine whether that case is to be distinguished on the ground that the doctrine now laid down was not then contended for, or is to be supported on the ground that the court will not help out a conveyance defective for lack of the word “ heirs ” by letting it operate as an agreement. It is settled that the word “ agree ” may be read “ grant,” and an agreement under seal construed to be a grant.*25Hogan v. Barry, 143 Mass. 538. Ladd v. Boston, 151 Mass. 585. But it is another matter to hold that what is defective as a grant is valid as an agreement where the parties have undertaken to make a grant. As we have said, that need not be determined now.

If the owner of lot BEFO has a right in perpetuity specifically to enforce in equity the agreement that the strip G B C H shall be kept open as a passageway for the use of that lot, there is as much an incumbrance on the strip G B C H as there would be in case the owner of lot B E F C had a legal easement over the strip G B C H as appurtenant to his lot.

2. We are of opinion that the clause in question is not to be construed to limit the use of the way to the life of the two dwelling houses then on the two lots, or for use in connection with a dwelling house, but that it was intended that the way should be for the benefit of these two lots of land. For that reason it was not abandoned or lost in 1862 when the dwelling house on the lot retained by Moore was removed and that lot cut up into back yards for houses fronting on Chestnut Street, although the right of passageway could not be used in connection with the lots on Chestnut Street not owned by Moore at the date of the deed; Greene v. Canny, 137 Mass. 64; and the presiding judge was right in so ruling. But the right to use the passageway in question attached and now attaches to all the land then owned by Moore. Blood v. Millard, 172 Mass. 65.

3. We are of opinion that the defendant was right as to the date as of which the damages are to be assessed. The ruling appears to have been made on the authority of the concluding remarks of Chie'f Justice Field in Richmond v. Ames, 164 Mass. 467. The true rule is laid down in that case, namely: “ In an action on the covenant against incumbrances, when the incumbrance is a right of way, and has not been relinquished, the damages are that amount of money which is a just compensation to the plaintiff for the real injury resulting from the incumbrance. Wetherbee v. Bennett, 2 Allen, 428. The general rule is stated in Harlow v. Thomas, 15 Pick. 66, 69, as follows: ‘ The general rule in cases of this kind is plain and undisputed. If the covenantee has fairly extinguished the incumbrances, he ought to recover the expenses necessarily incurred in doing it. *26If they remain and consist of mortgages, attachments, and such liens on the estate conveyed as do not interfere with the enjoyment of it by the covenantee, he can recover only nominal damages. But if they are of a permanent nature, like the perpetual servitudes in this case, such as the covenantee cannot remove, he should recover a just compensation for the real injury resulting from their continuance. Prescott v. Trueman, 4 Mass. 627, 630.’ See Batchelder v. Sturgis, 3 Cush. 201.” See also Bronson v. Coffin, 108 Mass. 175; 3 Sedg. Damages, (8th ed.) § 972; Rawle, Covenants for Title, §§ 190,191.

A covenant against incumbrances, if broken, is broken at the date of the deed (Jenkins v. Hopkins, 9 Pick. 543) and the damages accrue at that date. The damages (and we are here speaking of damages under a covenant against incumbrances as distinguished from the other covenants in a warranty deed) are a just compensation for the injury actually suffered at that time. What was probably meant by the concluding remarks of Chief Justice Field in Richmond v. Ames is that subsequent events may be put in evidence to show what the damages then incurred in fact were, and that in making up the amount of the verdict or finding, interest may be added to the amount so found, down to the date of the verdict or finding. It cannot be that the amount of damages is not fixed at the date of the breach but is dependent upon there being a rise or fall in the market value of the estate sold between the date of the breach and the date of the trial. Were it the rule, as it is in some jurisdictions, that a subsequent rise in value of an article of fluctuating value (see Sedg. Damages, § 512) may be considered in actions of trover, there might perhaps be some reason for the rule adopted by the judge in this case; but that is not so in this Commonwealth. Kennedy v. Whitwell, 4 Pick. 466. Stone v. Codman, 15 Pick. 297. Johnsons. Sumner, 1 Met. 172. East Tennessee Land Co. v. Leeson, 183 Mass. 37, 41.

The exception as to the measure of damages is sustained; all the other exceptions are overruled.