155 Mass. 341 | Mass. | 1892
In 1866, one Lockey was the owner of a tract of land in Cambridge, nearly in the shape of a right-angled triangle, the boundary line which formed the hypothenuse of the triangle on the northeasterly side being the Fitchburg Railroad, North Avenue, a much travelled highway one hundred feet wide, lying on the west, and land of private owners on the south. Through this he opened a way called Roseland Street, running easterly to Beacon Street nearly at right angles to North Avenue, which cut off the point of the triangle on the southeast and crossed the Fitchburg Railroad. On October 15, 1866, he conveyed to the North Avenue Congregational Church a lot at the southwesterly corner of the tract, bounded northerly
The question in this case is whether the several conveyances of May 19, 1868, created a right which will be enforced in equity in favor of the several grantees to have no buildings except first-class dwelling-houses erected on any of the lots except lot No. 1, and none upon that except a store or a first-class dwelling-house.
The fact that the grantor of this land had conveyed two lots without restrictions, one of them nearly two years before the plan was drawn cutting up the tract into lots, and the other in the same month that the plan was made, and apparently before he had perfected his scheme in regard to the sale of the remainder, is not very significant. On May 19, 1868, he was the owner of thirteen lots. Lot No. 1 was small, and in the angle made by the intersection of the Fitchburg Railroad with North Avenue. It would not materially affect his general plan to sell lots to be used only for the erection of first-class dwelling-houses to permit the erection of a store in that corner, close by the railroad tracks. Nor would it much affect the plan to retain lot No. 10, a small lot in the other angle at the junction of the railroad with Beacon Street, and afterwards sell it without restrictions. Neither of these was very well adapted to use in the erection of a first-class dwelling-house. All of the lots which were considered desirable for that use were sold by contemporaneous deeds to different parties, and the same restrictions as to the kind of buildings which might be erected were imposed on all. As the grantor owned no other land in the vicinity, it seems clear that the restriction was imposed on each lot for the benefit of the owners of all the others, and that it was a part of a general scheme for the improvement of the entire property.
The restriction on the lots on Roseland Street, requiring the houses to be set back ten feet from the street, was of the same
The deeds were recorded, and the purchasers of lots had constructive notice of all the incumbrances which appeared in them.
It follows that the defendants were unable to give the plaintiff a good title to the land which they agreed to sell, and, on the facts agreed, he is entitled to recover.
Judgment affirmed.