194 Mass. 513 | Mass. | 1907
The plaintiff seeks by this bill to obtain an injunction to prevent the erection of a garage by the defendant on Newbury Street in Boston. The case was reserved by a judge of the Superior Court upon the pleadings, his findings of fact, and the evidence taken before a commissioner. The plaintiff is the owner of a house and lot on Newbury Street, very near the defendant’s lot on which he began to build a garage. In the deeds under which the respective parties claim title there is a restriction, as follows: “ No building shall be erected on said described premises except outhouses to dwellings, the exterior walls of which shall be of any other material than brick, stone or iron, nor shall any building erected thereon be used or occupied for a stable, either livery or public or private, for carpenter’s shops, white or blacksmith shops, or for any foundry, mechanical or manufacturing purposes or for any other business which shall be offensive to the neighborhood for dwelling houses.” The judge found that the purpose of this restriction in the deed of Whitney and others, trustees, to Fairchild, under which both parties claimed, was a “ furtherance of a general scheme for the
The proposed garage is designed to accommodate about one hundred and twenty-five automobiles of the larger type. A steel tank, enclosed in cement, is arranged under the front of the building, to hold ten barrels of gasoline. The second floor is designed to be used partly for the storage of automobiles. The rear of the third floor is designed for a repair shop, for making minor repairs of automobiles. The dimensions of this repair shop are about one hundred feet by thirty feet. The southeast corner will contain a small, portable forge. The size of this room is such that from six to eight cars of the largest type may be repaired simultaneously. The building is intended to be used as a salesroom and repository for the Locomobile Company of America. A number of demonstration cars are to be kept, with demonstrators to run them for possible customers. The building is also intended to be used to store and care for automobiles belonging to customers. About seventy-five or a hundred customers are expected to store their automobiles here,
The remaining question is whether there has been such a change in the conditions as to preclude a court of equity from enforcing the restriction. The judge found, and there is no doubt of the correctness of the finding, “ that the restrictions in question were imposed by Whitney and others, trustees, in 1886 for the purpose of keeping this property as a residential property as being the use for which it was then believed to be best adapted.” The defendant relies on the case of Jackson v. Stevenson, 156 Mass. 496, in which it was held that, by reason of an entire change in the character of the neighborhood and the use of the property on Pleasant Street and Park Square in Boston, it would be impossible for the plaintiff or others to obtain any benefit from an enforcement of the restrictions, originally imposed in reference to a use of the lots for dwelling houses. The facts of that case were very different from those of the present case. In the present case no use has been shown of any part of the property on which the restriction was put that is in violation of the restriction. There has been a considerable increase of business lately on Massachusetts Avenue, which is a great thoroughfare. A part of Newbury Street between Massachusetts Avenue and Hereford Street was originally left unrestricted, and stables were built there. The proximity of the Boston and Albany Railroad diminishes the desirability of a part of the property on Newbury Street for residences. But these conditions, except the increase of business on Massachusetts Avenue, existed in 1886 when Whitney and others, trustees, made their conveyances. In the absence of any material change in conditions directly affecting the character and use of
The judge, in his finding, expressed an opinion that in ten years this part of Newbury Street “ will be wanted for business purposes, and is worth more for such purposes than for residential purposes.” Whether this opinion as to the future is well founded or not, it is not a good reason for depriving those who have built dwelling houses on their lots, in reliance upon the restriction, of their right to have the adjacent property used in accordance with the provisions of their deeds.
Decree for the plaintiff.