294 Mass. 473 | Mass. | 1936
This is a suit in equity against The Colum-bian National Life Insurance Company and the Economy Grocery Stores Corporation — the former being the owner, and the latter the lessee of a part, of premises situated at 297 Newbury Street, in Boston — to enjoin the defendants from permitting or carrying on a chain grocery store on the premises. The plaintiffs are the owners of premises situated at 293 and 301 Newbury Street, on either side of the defendants’ premises, each being one lot removed therefrom.
The trial judge found the following material facts, the
Between October 2, 1884, and November 11, 1887, by six separate quitclaim deeds, Warner and Smith conveyed
The land of the plaintiff Lovell is part of the lot originally conveyed by Warner and Smith to Avery, and the deed to the plaintiff Lovell from her grantor, one Shirley C. Speed, “conveyed the land and building and the fee of the southerly half of the passageway in the rear; 'together with the benefit of and subject to all rights, easements, reservations, restrictions and agreements set forth or referred to in a deed to Alden Avery from Caleb H. Warner et al. Trustees, dated November 11, 1887, . . . recorded with Suffolk Deeds ... so far as now in force and applicable.’” The land of the plaintiffs Magaw is next west to the lot originally conveyed to Coffin by Warner and Smith and is the lot originally conveyed to Louisa D. Edwards. The deed to the Magaws was made by one Mary F. Kett and contains the provisions that: “The premises are conveyed subject to and with the benefit of the easements and restrictions and agreements mentioned or referred to in a deed to one Gladys M. Crocker, recorded with Suffolk Deeds . . . in so far as now in force and applicable.”
On December 28, 1927, Daniel A. McLaughlin, the owner of the Newbury Street property originally conveyed to Edwin B. Horn, brought a bill in equity to have the restriction on his property declared to be no longer in force. The bill was taken for confessed against Mary K. Magaw among others of thirty-three defendants. Although no service was made on the plaintiff Lovell, she testified that she “followed” the case. As late as the spring of 1932, the present plaintiffs were informed by their attorneys that there were no restrictions against business on their properties. Early in 1932, when the plaintiff Lovell was contemplating changes in her premises so as to make them available for business purposes, she was informed by another Newbury Street property owner that there were restrictions against such use of her property, and that the restrictions applied also to the premises at 297 Newbury Street.
On November 28, 1932, the present bill of complaint was brought. Findings were made of the amount of damages caused by the carrying on of the store and of the character of the neighborhood. The trial judge found (1) that the plaintiffs could not recover since the restrictive covenant was a restriction not on use but on building; (2) that the plaintiffs could not recover for the reason that the resfrie-
The principal questions argued by the parties are (1) whether the restriction is one the plaintiffs can enforce; (2) if so, whether there has been a violation of the restriction by the defendants’ use of the basement for business purposes; (3) whether the plaintiffs are' barred by loches from obtaining any relief.
In a case covering equitable restrictions it is settled that the burden of proof is on the party claiming the benefit of a restriction to show that it is appurtenant to his land. Lowell Institution for Savings v. Lowell, 153 Mass. 530, 532. Stewart v. Alpert, 262 Mass. 34, 38. Snow v. Van Dam, 291 Mass. 477, 485. As to the force to be given to the language used and to the point that any doubts will be resolved in favor of freedom from restrictions, see Smith v. Bradley, 154 Mass. 227, 231; Boston Baptist Social Union v. Boston University, 183 Mass. 202, 205; Davidson v. Sohier, 220 Mass. 270, 272; Stone v. Pillsbury, 167 Mass. 332, 337; American Unitarian Association v. Minot, 185 Mass. 589, 595.
In the case at bar there is no contention that the burden of the restrictions was not, by the various instruments, validly attached to the Newbury Street property in favor of the Commonwealth Avenue property. The controversy is as to whether the benefits of the restrictions attached to each parcel of the Newbury Street property, especially as to those now owned by the plaintiffs, so as to enable the owner of each parcel to enforce the restrictions against the owner of every other parcel of that property. To support
The plaintiffs’ argument as to inferring a general plan covering both tracts of land originally owned by Warner and Smith cannot prevail. There was no declaration in any form by the grantors that such was their intention. On the contrary, it is more readily inferable from the various documents that the intent of the grantors was to attach a benefit to the Commonwealth Avenue lots and a burden only on the Newbury Street lots. No such general plan can be inferred from any uniformity of restrictions covering the lots in both tracts because no restrictions, such as were attached to the Newbury Street lots, were attached to the Commonwealth Avenue lots. Donahoe v. Turner, 204 Mass. 274, 275, 276. Webber v. Landrigan, 215 Mass. 221, 222. It follows that there was no general plan or scheme shown covering both tracts. It may be true, if the Newbury Street lots alone had been sold with restrictions against business buildings stated in the deeds, that the plaintiffs might have prevailed in their argument that these lots were sold under a general scheme, but the transactions with reference to the Newbury Street lots were inseparably connected with the Commonwealth Avenue conveyances. Indeed, the restrictions were not even set forth in terms in the New-bury Street conveyances, these conveyances reading that the Newbury Street lots were subject to restrictions and agreements set forth in the deeds of the Commonwealth Avenue properties, and the various documents must be read together. • The language used in subsequent deeds of the Newbury Street lots, to the effect that the subsequent grantees were to have the benefit of any easements created by the deeds to the original grantees, obviously could not create any rights additional to those given the original grantees of the Newbury Street lots. Sargent v. Leonardi, 223 Mass. 556, 558. Snow v. Van Dam, 291 Mass. 477, 480.
The findings of the trial judge, based on documentary
Decree affirmed with costs.
From testimony by Thomas F. Kerrigan, Esquire, a conveyancer, which did not appear to be questioned by the defendants, the "restrictions and agreements” in this deed to Crocker were the same as those originally imposed by the deeds of Warner and Smith, trustees, quoted supra, page 474. — Reporter,