| Mass. | May 7, 1886
At the argument, the main reliance of the defendants was upon the position that the right reserved upon the land south of the contemplated line of buildings was merely for a way'or street; that the use of it for a way or street was long since abandoned, as is shown by the erection and maintenance of the door-steps and fences; and that all the subordinate or incidental rights or privileges in the nature of easements, such as of prospect, light, and air, were also abandoned.
This argument, if valid, would seem by implication to assert the right of the defendants to build over the whole enclosed space in front of their house, without liability to restraint at the suit of the plaintiffs.
We do not find it necessary to determine whether, taking the indenture of 1824 by itself alone, the restrictions and prohibitions therein contained were intended merely to be incidental to the use of the front space as a travelled way or street. It clearly was contemplated that the land should be divided up into lots, and be owned by different proprietors. In 1843, when the second indenture was entered into, the situation had changed. Buildings had then been erected, the front walls of which projected beyond the line theretofore fixed, and stone door-steps projected several feet beyond the front walls of the houses. The mill corporation had become the owner of the lots upon which the dwelling-houses of the plaintiffs and of the defendants now stand. By the second indenture, a modified front line was fixed, the front walls of houses and the door-steps as then existing were sanctioned, and others were allowed to be built extending equally far to the south; and there was an express proviso against any farther extension, a.nd also against placin'!- any fixture of any kind, other than steps as aforesaid,
It is impossible to consider these new provisions as merely incidental to the use of the space in front of the houses as a street or way, because the stone steps already existing, and permitted to be built in the future, would prevent such use, at least as far as they extended. It must therefore be considered that the several owners at that time had in mind a method or system of building which should prevent any other projections in the future, not as incidental to the use of the space immediately in front of their houses as a travelled street or way, but on account of the other benefits which were contemplated as the result of conforming to such a common plan. The form in which this purpose was expressed was that of an indenture between the mill corporation, on the one side, and various owners of lands under the partition of 1828, on the other side. But the corporation no longer had any special interest in the mill-dam or street in front of these estates, and it had itself become the owner of an estate under that partition, and was bound, as such owner, by the stipulations in the indenture of 1824, so far as they were for the benefit of adjoining estates. Thus the indenture of 1843 was in reality between owners of lands under that partition. Under this state of things, the indenture of 1824, as modified by that of 1843, being still in force, Hall, the defendants’ predecessor in title, accepted his deed in 1846, in which he expressly agreed to comply in all respects with the conditions, stipulations and reservations theretofore made by the Mt. Vernon proprietors relative to the erection of buildings thereon. This, if nothing had been added, would have bound him to the observance of the requirements of the original indenture of 1824. Accordingly, there was a further provision, that nothing theretofore done by said proprietors should be construed to require any buildings to be placed further north than the line of said brick house on said Sears’s land continued, or to prevent the placing of steps for the front door of any house built on said granted land extending as far south of the walls of such houses as the steps of said house on said Sears’s land then extended beyond the wall of said house. This allowed to Hall the same rights as those contemplated in the indenture of 1843. Here, then, there was an express stipulation, in 1846,
The fact that other bay windows have been erected without expressed objection does not cut off the plaintiffs’ right to object to one which injuriously affects them. According to the plan used at the hearing, there was no other bay window so near to the plaintiffs’ house as to interfere with their prospect, or to afford the least presumption of a waiver by them.
Decree for the plaintiffs.