282 Mass. 182 | Mass. | 1933
This bill in equity is brought by the owners of land on the corner of Commonwealth Avenue and Deer-field Street, in Boston, against the owner and the lessee of land on the corner of Commonwealth Avenue and Sherborn Street, to enforce certain equitable restrictions. A final decree has been entered in favor of the plaintiffs from which the defendants appealed. The case was referred to a master. The defendants’ objections to his report were overruled and an interlocutory decree was entered confirming it and denying a motion for recommittal. With the exception of part of the testimony of two witnesses, the evidence is not reported. , The question for decision is whether the final decree is warranted upon the facts found and those agreed to by the parties.
A plan dated January 9, 1894, was introduced in evidence marked Exhibit 3. The estates of the plaintiffs and defendants are both on the Commonwealth Avenue side of block C, the plaintiffs’ estate being marked on the plan “Lot H” “Reserved For Sale,” and the defendants’ estate being lots 22 and 23. All the lots in block C except the plaintiffs’ are subject to certain restrictions established in 1896 to remain in force until January 1, 1950, for the benefit of all the land in that block including the defendants’ land. It appeared that there were “two sets of restrictions, one expiring in 1930 and one expiring in 1950,” and that “they were the same restrictions only covering a wider area.” These restrictions prohibit the erection, placing or use on said land of any buildings other than dwelling houses or outbuildings to dwelling houses, the erection of stables of any kind and the use of any building as an apartment house, family hotel, or flats, and prohibit in design or construction any building to be fitted for occupancy by more than one family, or to be used for manufacturing, mercantile or mechanical purposes.
On ten lots facing the Bay State Road side of block C are ten dwelling houses, erected before 1923; they are the only buildings erected, placed or used in block C except the following: About 1928 a structure, having the appearance of a room in a dwelling house, was erected on lots 20 and 21 for the purpose of exhibiting furniture arranged as though the room were furnished. After about two years this was abandoned. In June, 1929, a tent was placed on lots 1 and 2 for the display and sale of used cars; this continued for almost two months. Gasoline and oil were delivered from a filling station across the street and sold on the premises. In 1930 a wooden building ten feet wide, twelve feet deep, and ten and one half feet high was built on lots 1 and 2 and was laid out as a miniature golf course; after about four months this enterprise was abandoned.
The same restrictions as appear in block C were established at the same time for all the blocks marked A to G on the plan which comprised all the land between Commonwealth Avenue and Bay State Road extending westerly from Deerfield Street to Cousen’s Coal Wharf, shown on the plan. By express language each set of restrictions was limited to the land in the block in which the restricted lots respectively were located. All the land in blocks E, F and G extending from Granby Street to Cousen’s Coal'Wharf is owned by Boston University which has prepared plans for the development of the tract for university purposes. Blocks A and B on the north side of Bay State Road west of Deerfield Street are used exclusively for single family dwellings, the Charles River being in the rear of them. The master found that there have been no violations of the restrictions in the whole restricted area shown on the plan except those hereinbefore referred to in block C, and the erection of a four-story brick building on one of the lots in block D.
The master found that land outside the restricted area and south of Commonwealth Avenue within a radius of a quarter of a mile of the plaintiffs’ land is used almost exclusively for business purposes, and mostly for the automobile and automobile accessories business; that the only buildings used for dwellings are hotels and apartment houses; that buildings erected as single family dwellings are now used for physicians’ offices, or fraternity houses, with a few exceptions.
It was agreed by the parties that certain facts are agreed to in addition to the facts stated by the master and are made a part of the record; that so far as such agreed statements are inconsistent with any facts found by the master the agreed facts are to be taken as true. These additional facts are recited in the record and need not be herein stated.
In accordance with the well established rule the facts found by the master must be accepted as true unless mutually inconsistent or contradictory and plainly wrong. Prudential Trust Co. v. McCarter, 271 Mass. 132, 139. Nelson v. Belmont, 274 Mass. 35, 39. The restrictions by their express terms apply to the defendants’ lots for the benefit of the plaintiffs’ lot. There is nothing to show that the restrictions upon the defendants’ lots have been released by the plaintiffs or by their predecessors in title. The agreement of the parties above referred to relates to a deed and a release of the restrictions on lots in block C other than lots 22 and 23 and lot H, and cannot affect or impair the rights of the plaintiffs to enforce such restrictions against the defendants. Moreover, the purchaser named in the release reserved his rights to enforce the restrictions as to any other land owned by him and entitled to the benefit of the restrictions. The contention of the defendants that the right to enforce the restrictions has been abandoned cannot be sustained. There is nothing to show any acts by the owners of lot H or by their predecessors in title which unequivocally manifest an intention to relinquish the restrictions, or a purpose inconsistent with their further existence, and the master so found. Hartt v. Rueter, 223 Mass. 207. In the absence of a report of the evidence this finding must stand.
The restrictions have been in existence since they were established in 1896, until 1931 when the plaintiffs’ bill was filed. The erection and temporary maintenance and use of bill boards and other structures upon lots in block C by other owners, if it be assumed they were so erected and maintained in violation of the restrictions, cannot affect the rights of the plaintiffs even if they did not object to them. It was said in
Apart from other defences, it is the contention of the defendants that since 1896, when these restrictions were created, the character of the neighborhood has so changed from a residential to a business locality that it would be inequitable to enforce the restrictions for a longer period, and they rely upon certain findings of the master which tend to support that conclusion. It is found that the plaintiffs’ title to lot H, and the title of the defendants to lot 22 are derived through mesne conveyances from deed of the Riverbank Improvement Company to Howard Stockton et al., trustees of Riverbank Improvement Trust dated August 28, 1922, and duly recorded. The defendants’ title to lot 23 is derived through mesne conveyances from a deed of the Riverbank Improvement Company to Charles U. Cotting dated March 13, 1900, and duly recorded. No other instruments of record affect any easement or restrictions created by any deed above mentioned. There was evidence that when the plaintiffs purchased lot H in 1923 they had been advised as to both sets of restrictions on block C, one expiring in 1930 and the other in 1950, and were further advised that no garage could be erected within the restricted area; that they relied thereon and on the restriction that no land could be used for a gasoline station or other commercial purpose in block C. These restrictions have been held valid and enforced by this court in several cases relating to different lots in the seven blocks shown on the plan. See Carr v. Riley, 198 Mass. 70; Riverbank Improvement Co. v. Bancroft, 209 Mass. 217; Prest v. Ross, 245 Mass. 342; Tripp v. Fay, 264 Mass. 516; Doyle v. Wheeler, 265 Mass. 256. All these cases dealt with different questions which arose respecting these same restrictions. See also Riverbank Improvement Co. v. Chapman, 224 Mass. 424. In Riverbank Improvement Co. v. Chadwick, 228 Mass. 242, it was said at page 247 that the Legislature could not extinguish rights acquired by an equitable restriction “ merely for the benefit of other private landowners whose estates are less valuable by reason of the existence of the right and who could
The change in the character of the neighborhood as set forth in the subsidiary findings of the master has not been such as to render the restrictions no longer enforceable in equity. His ultimate findings are as follows: “On all the evidence I find . . . that there is no reasonable possibility of the erection or use as a single family dwelling of any building on the defendants’ property or on any lot fronting on Commonwealth Avenue in block C and that this results from the changed character and conditions of the neighborhood surrounding block C”; “that the changed character of the locality surrounding the defendants’ premises has resulted from other causes than any violations of the restrictions above set forth”; “that the purpose as a whole of the said restrictions was to make block C a suitable locality for single family residences and that owing to the general growth of the city and the use of the neighborhood for business this purpose can no longer be accomplished”; “that even if all the said restrictions were rigidly enforced the effect would be not to restore to the locality its intended residential character, but to lessen the value of the vacant land on block C fronting on Commonwealth Avenue for the purpose to which it is now adapted.” These findings are based upon inferences from the restrictions and from the other facts found. The trial judge was not bound by the master’s findings but could rightly draw different inferences from the subsidiary facts found by the master. Robert v. Perron, 269 Mass. 537, 540. Crowell & Thurlow Steamship Co. v. Crowell, 280 Mass. 343, 358-359. International Paper Co. v. Priscilla Co. 281 Mass. 22, 31.
It is a reasonable inference that the restrictions were intended to make block C a desirable locality for single family residences, with the exception of lot H. The master found that the enforcement of the restrictions would lessen the value of the vacant lots in block C fronting on Common
As lot H is not subject to the restrictions, if the defendants may violate them the plaintiffs will be obliged to carry on their business in competition with the defendants, although in reliance upon the freedom from competition the plaintiffs bought the lot and erected a building at a sub- • stantial expense. They established their business about eight years before the bringing of this bill. In these circumstances to allow the defendant. The Texas Company to carry on a competing business in the same block with that of the plaintiffs manifestly would be unjust and inequitable.
The master found as follows: “At the present time the subway is in process of extension which will bring the cars to the street level about midway of block C with a stopping place at that point. I find that this condition is a detriment to the use of block C for single family dwellings.” This finding is not conclusive. It might reasonably be inferred that it would be a convenience and benefit to residents of dwellings in block C to have easy access to the cars in going to and from their homes.
The circumstance that the southerly half of block C fronting on Commonwealth Avenue lies within an area that is zoned under St. 1924, c. 488, “as a local business district, and the northerly half, fronting on Bay State Road is zoned as a general residence district,” does not affect the rights of the plaintiffs. It is settled that a zoning law has no effect upon established and existing building restrictions. Vorenberg v. Bunnell, 257 Mass. 399, 408. Nelson v. Belmont, 274 Mass. 35, 46.
The final decree is to be modified by striking out in the first and fourth paragraphs the following, “until January 1, 1950.” As it is apparent that the insertion of a comma
Ordered accordingly.