Cross v. Frost, 64 Vt. 179

64 Vt. 179 | Vt. | 1891

The opinion of the court was delivered by

MUNSON, J.

The orator seeks by this bill to have the grade of the lot therein described restored to the condition it was in before certain excavations were made by the defendant. His claim stands upon the construction of a deed by which the owner of the lot placed himself under certain restrictions as to its use. The clause principally relied upon is one which pro vides that the grantor shall not put ‘‘any buildings, timbers, trees, or other nuisances on said land.”

It is a general rule that when words of particular designation ••are followed by an expression of general import, the latter can be held to include only things similar in character to those specially named. Brainerd v. Peck, 34 Vt. 496; Parks’ Admr. v. American Home Missionery Soc., 62 Vt. 19; Re Barre Water Co., 62 Vt. 27. If this rule governs the construction of the clause quoted, the phrase “ other nuisances ” cannot be made to include a lowering of the surface; for the things named are only such as are placed upon and raised above the surface. We think the scope of the phrase must be restricted in accordance with this rule, unless its use in a more comprehensive sense is apparent from the instrument as a whole.

But when all the provisions of the deed are taken together, .and considered in the light of the circumstances which surrounded the transaction, we see nothing that indicates an intention to ■guard against a lowering of the surface. The purchase was made to secure the removal of a part of a building which entirely ■obstructed the street view of the Guernsey house, and impaired that of the Cross house. The clause above quoted is followed by a provision that the land shall always remain open, with nothing upon it to obstruct the view. We think the purpose of the first ■clause was in line with that directly expressed in the second, and that an unobstructed surface was the thing intended to be secured.

This view is further supported by the provision made for determining the original grade. The place was to be filled to the satisfaction of the owner of the land. If Mrs. Brooks had then insisted upon the grade now established, the orator would have been without remedy. In view of the orator’s having accepted ■stipulations which left the original grade to be determined by the other party, he cannot now well claim that it was the purpose of the deed to secure the permanent preservation of the most desirable grade. We think the grading reported by the master is not an injury which the deed entitles the orator to complain of.

Decree affirmed and cause remanded.

Taft, J., did not sit, being absent.