156 Mass. 496 | Mass. | 1892
In the year 1853 the city of Boston owned a parcel of land known as the Arsenal Estate, in the vicinity of the southerly end of the Common. The lot was. triangular, but truncated at the northerly end towards the Common, and contained an area of about 14,000 square feet, bounded on the west by Pleasant Street, now known as Park Square, and on the other side by lands of private owners. The westerly line was about 232 feet in length, and the greatest depth perpendicular to this line was about 100 feet, while at the northerly end the depth was about 24 feet. At this time the estates surrounding the Common were chiefly used for the more expensive residences. The city caused the land to be divided into eight lots and sold. The most northerly and southerly lots, numbered respectively 1 and 8, were each about 44 feet wide, and each of the other lots was 24 feet. The plaintiffs are the owners of lot No. 8, while the defendant is the owner of lots numbered 4 and 5; the other lots are owned by different persons, all deriving title through separate deeds from the city. Each lot was divided, by lines parallel with Pleasant Street, into front and rear portions. The front portion of lot No. 1 was 18 feet deep; of lot No. 2, 32 feet; and of the other lots, 40 feet. In order to provide a general building scheme, and to effect a uniform plan, certain restrictive clauses, intended- for the benefit of the lots and of the neighborhood, were inserted by the city in its deeds. The first of these clauses related to partition walls, the second to the front lines of the buildings, and the third required the buildings to be of a width equal to the width of the front of the lot. The fourth restrictive clause provided that “ No dwelling-house or other building except the necessary outbuildings shall be erected or placed on the rear of the said lot.” The fifth clause was as follows: “ No
■ No objection had been made by the owners of the plaintiff’s estate to any structure erected on any of the lots until this case arose in 1891. The master finds that since August 25, 1873, there has been a considerable change in the character of the neighborhood, the houses being no longer used as dwellings exclusively, but devoted to a considerable extent to business purposes, and that the neighborhood is now, to all intents and purposes, a business or mercantile one. The defendant, owning property on Carver Street abutting on the rear of lot No. 4, and intending to erect a market on Carver Street, proposed to build over the entire rear portion of lot No. 4, a brick structure with a flat roof and raised skylight, for use as a part of and a connection between the ground floor of the building on lot No.-4 and his Carver Street property, designed as a store or market, its exact use depending upon future tenants. The plaintiffs, upon ascertaining this, gave notice that they should insist on a compliance -
The master finds that the proposed structure would cause no appreciable diminution of light or air, nor any perceptible damage to the plaintiffs’ estate, beyond the possible technical damage which the law may assume; and that the structures on the rear portions of lot No. 6 and lot No. 7, which lie between the premises of the parties, are of more considerable importance as affecting the plaintiffs’ premises than the proposed structure would be.
Whether the right to equitable relief is affected by acquiescence depends upon the circumstances of each case. Where such a defence is claimed, the facts relating to it become material, and may be inquired into. The exception to the finding of the master relative to structures upon the other lots must therefore be overruled. Roper v. Williams, Turn. & Russ. 18. Peek v. Matthews, L. R. 3 Eq. 515. Ware v. Smith, ante, 186.
We assume that when restrictions inserted in the deed of a particular lot are part of a general scheme for the benefit and improvement of all the lands included in a larger tract, a grantee of any part of the land may, under proper circumstances, enforce them against his neighbor; Whitney v. Union Railway, 11 Gray, 359; Parker v. Nightingale, 6 Allen, 341; Linzee v. Mixer, 101 Mass. 512; Tobey v. Moore, 130 Mass. 448; Beals v. Case, 138 Mass. 138; Payson v. Burnham, 141 Mass. 547; and that the restrictions inserted by the city in its deeds were of this nature. Nano v. Bigelow, 155 Mass. 341. We also assume that
Assuming these points in favor of the plaintiffs, we are nevertheless of the opinion that an injunction should not be granted in the present case. It is evident that .the purpose of the restrictions as a whole was to make the locality a suitable one for residences; and that, owing to the general growth of the city, and the present use of the whole neighborhood for business, this purpose can no longer be accomplished. If all the restrictions imposed in the deeds should be rigidly enforced, it would not restore to the locality its residential character, but would merely lessen the value of every lot for business purposes. It would be oppressive and inequitable to give effect to the restrictions ; and, since the changed condition of the locality has resulted from other causes than their breach, to enforce them in this instance could have no other effect than to harass and injure the defendant, without effecting the purpose for which the restrictions were originally made. Duke of Bedford v. British Museum, 2 Myl. & K. 552. German v. Chapman, 7 Ch. D. 271, 279. Sayers v. Collyer, 24 Ch. D. 180, 187. Columbia College v. Thacher, 87 N. Y. 311. Starkie v. Richmond, 155 Mass. 188.
But as the plaintiffs have no remedy at law against the defendant, the bill should be retained for the purpose of assessing