Flynn v. Caplan, 234 Mass. 516

Flynn v. Caplan

234 Mass. 516 | Mass. | 1920

Crosby, J.

This is a suit in equity brought to enforce a building restriction on land owned by the defendants. The deed in which the restrictions were originally created was given by Francis V. Balch, Trustee, and another to the city of Boston, and was dated March 30, 1889; after reciting the restrictions it is provided that “The restrictions above set forth shall continue in force so long as such roadway and walk shall be maintained by said City of Boston. ...” If we assume, without deciding, that the restrictions imposed by the original grantors were not merely for the benefit of the city of Boston but also attached to the remaining land of the grantors, the fundamental question is: Are they terminated by virtue of the provisions of St. 1887, c. 418, now R. L. c. 134, §20? If' the statute applies it is plain that they are no longer in existence, as more than thirty years have elapsed since the date of the deed by which they were created.

The words of the statute are these: “Section 20. Conditions *520or restrictions, unlimited as to time, by which the title or use of real property is affected shall be limited to the term of thirty years after the date of the deed or other instrument or the date of the probate of the will creating them, except in cases of gifts or devises for public, charitable or religious purposes. The provisions of this section shall not apply to conditions or restrictions existing on the sixteenth day of July in the year eighteen hundred and eighty-seven or to those contained in a deed, gift or grant of the Commonwealth.” The evident purposes of the statute was to terminate restrictions that have been in force thirty years, unless it appeared in the instrument creating them that they were to run for a definite term of years, or until the happening of an event certain to occur. The word “unlimited” means without confines, unrestricted, boundless. The city of Boston may maintain the roadway and walk forever or for a lesser period, in accordance with the determination of the city. The restriction may therefore be unlimited as to time because the city may never cease to maintain the roadway and walk; and in any circumstance it is terminable upon the happening of an event not certain to come to pass and hence it is not protected against termination at the expiration of thirty years prescribed by the statute. This conclusion follows by analogy the rule of the statute of frauds. If an oral contract may be completely performed within a year it is not within the statute of frauds. R. L. c. 74, § 1. Peters v. Westborough, 19 Pick. 364. Somerby v. Buntin, 118 Mass. 279, 286. A grant of real estate to be devoted to certain uses, with a provision that if it is afterwards diverted to other purposes the title of the grantee shall cease and thereafter be vested in others, is a grant of an estate which is to continue until the happening of a certain event and then cease. “ That event may happen at any time, or it may never happen. Because the estate may last forever, it is a fee.” First Universalist Society of North Boland v. Boland, 155 Mass. 171, 174. Brattle Square Church v. Grant, 3 Gray, 142, 156, 157. Jamaica Pond Aqueduct Corp. v. Chandler, 9 Allen, 159, 168.

A condition or restriction, by which title or use of real property is affected, is limited by the statute to a period of thirty years, unless the instrument creating the right shall define with exactitude a lesser or greater interval of time over which the condition or the restriction shall run. See Boston Baptist Social Union v. Boston *521University, 183 Mass. 202, 205; Loud v. Pendergast, 206 Mass. 122, 125; Riverbank Improvement Co. v. Bancroft, 209 Mass. 217, 221. As more than thirty years have elapsed since the restriction was created a majority of the court are of opinion that it is no longer in existence and the plaintiff is not entitled to injunctive relief.

As the plaintiff at the hearing before the master offered no evidence of money damages sustained by him because of a violation of the restriction while it was in force, the bill should not be retained for an assessment of such damages; it should be dismissed with costs, but without prejudice to his right to sue at law if so advised.

Decree accordingly.