Sayles v. Hall

| Mass. | Nov 29, 1911

DeCourcy, J.

The defendant’s deed was in the form adopted for the conveyance of all the lots on Ocean Avenue by the Oak Bluffs Land and Wharf Company, the predecessor in title of the plaintiffs and the defendant. One of these deeds was before this court in the case of Hopkins v. Smith, 162 Mass. 444" court="Mass." date_filed="1894-11-30" href="https://app.midpage.ai/document/hopkins-v-smith-6425090?utm_source=webapp" opinion_id="6425090">162 Mass. 444. As was said in that case, “ the conditions and restrictions . . . were inserted for the benefit of purchasers from that company, who took deeds subject to these conditions and restrictions, and for the benefit of the grantees of such purchasers, and . . . therefore the restrictions can be enforced in equity by and against such grantees.”

We are of opinion that the keeping of boarders and letting of rooms to the extent set forth in the agreed facts is a violation of the restriction in the defendant’s deed limiting the buildings upon the premises to “ a dwelling-house to be used exclusively as a residence for a private family,” and the necessary outbuildings. Gannett v. Albree, 103 Mass. 372" court="Mass." date_filed="1869-11-15" href="https://app.midpage.ai/document/gannett-v-albree-6415924?utm_source=webapp" opinion_id="6415924">103 Mass. 372. Skillman v. Smatheurst, 12 Dick. 1. Hobson v. Tulloch, [1898] 1 Ch. 424.

No such change in the character of the neighborhood is shown as to render applicable the doctrine laid down in Jackson v. Stevenson, 156 Mass. 496" court="Mass." date_filed="1892-06-22" href="https://app.midpage.ai/document/jackson-v-stevenson-6424251?utm_source=webapp" opinion_id="6424251">156 Mass. 496. While it appears that the occupants of the houses numbered 11, 13 and 15 Ocean Avenue have let rooms and furnished meals at divers times, there were no signs displayed to indicate that lodgers or boarders were provided for. Further, these are but three of the forty-four dwelling houses on the avenue; and the agreed facts expressly state that Ocean Avenue always has been a very high class residential district. Still less are the plaintiffs to be deprived of a remedy by reason of changed conditions on other streets and avenues, due to the fact that a number of owners have accommodated boarders and lodgers in apparent violation of the provisions of their deeds. So far as Ocean Avenue property is concerned there has been shown no such change of conditions affecting its character and use as to warrant a finding that the restrictions have ceased to be binding. Stewart v. Finkelstone, 206 Mass. 28" court="Mass." date_filed="1910-05-18" href="https://app.midpage.ai/document/stewart-v-finkelstone-6431067?utm_source=webapp" opinion_id="6431067">206 Mass. 28.

The defense of laches is not sustained. The defendant did not make known to the public by sign or advertisement that she kept boarders or lodgers. The plaintiffs acquired their first knowledge of the fact after the autumn season of 1910; and it is agreed that they were convinced for the first time in the latter part of June, 1911, that the defendant was furnishing board and rooms. Notice to the defendant and suit promptly followed. And the plaintiffs had no knowledge that any of the other houses on Ocean Avenue or on other streets were used for furnishing people with board and lodging until the agreed statement of facts was prepared. Bacon v. Sandberg, 179 Mass. 396" court="Mass." date_filed="1901-06-19" href="https://app.midpage.ai/document/bacon-v-sandberg-6427549?utm_source=webapp" opinion_id="6427549">179 Mass. 396. Codman v. Bradley, 201 Mass. 361" court="Mass." date_filed="1909-03-01" href="https://app.midpage.ai/document/codman-v-bradley-6430603?utm_source=webapp" opinion_id="6430603">201 Mass. 361.

Decree for the plaintiffs.