Smith v. Bradley, 154 Mass. 227

Smith v. Bradley

154 Mass. 227 | Mass. | 1891

Morton, J.

The defendant does not contend .that the premises belonging to him are not subject to the restrictions contained in the original deed given by the Tremont Improvement Company, which originally owned these premises and those adjoining, or that the plaintiff is not a party entitled to relief upon a case being made of an actual or threatened violation of them by the defendant. He insists that the building which he is proposing to erect will not, if erected as he proposes to build it, constitute in any respect a breach of any of those restrictions.

The plaintiff contends that the term “ equidistant,” in the restriction that “ all buildings . . . shall be placed equidistant from, and at the distance of not less than eight feet back from the street,” requires the defendant to put the front of his building back to the uniform line of the fronts of the adjoining houses already erected. But it is clear that the line thus fixed must be a line of apparent rather than actual uniformity; and there is nothing in the case to show that the building of the defendant will, if erected as proposed, disturb this apparent uniformity of line. It will be impossible to make the front line or wall of the defendant’s building exactly equidistant from the street with that of the other buildings, for these are not equidistant with each other; even the front corners of the plaintiff’s own dwelling are not *230equidistant from the street. Moreover, it. would be unreasonable, when the other buildings were all intended, as the court has found, to be eight feet back from the street, and are now somewhat more than that distance, through causes due to the imperfect manner in- which they were constructed, to. require the defendant to conform his. building to the accidental line thus established, and which the owners, of the other buildings might rectify and would have the right to rectify. It would be giving the other landowners an easement in the land of the defendant in a manner never contemplated by the original deed, and we do not think that the term “ equidistant ” can be so construed. If it were necessary for us to define it, we would sooner incline to think it was used more in the sense of parallel. It would be highly probable that, under a restriction requiring the front line of buildings to be not less than eight feet from the street, all buildings would be set back eight feet and no more. In that case, if the word equidistant is construed as meaning that all buildings shall be the same distance from the street, it would add no power to the requirement that they should be eight feet back from the street. If, however, it should be construed in the sense of parallel, then, in addition to the uniformity produced by buildings placed the same distance from the street would be the unformity produced by their being placed in a line with the street. Again, if any other line than a line eight feet from the street is to be adopted, how is it to be fixed? We think, therefore, that the defendant has a right to build out to the eight-foot line, and that there is. nothing in the proposed construction of bis building that will violate this restriction.

The plaintiff further contends, that the restriction which requires that “they [the buildings] shall have no L more, than two stories in height,” will be violated by the erection of the building intended by the defendant. We do not think that this restriction means that no building shall be erected unless it has an L, or without an L, but that if any building is erected with an L it shall not exceed two stories in height. Parties are left to build with or without an L, as they choose. It is stated in the defendant’s brief, that in fact not one of the buildings which have been erected has an L. Parties are also left to build over their entire lots if they choose, leaving *231only the space of eight feet in front and ten feet in the rear, and the only restriction as to the height to which a building may be carried is that which relates to an L. Restrictions of the character of those which we are considering are to be interpreted fairly and reasonably, and according to the apparent purpose of protection or advantage to the several estates which they are intended to secure or promote. Whitney v. Union Railway, 11 Gray, 359. Jeffries v. Jeffries, 117 Mass. 184, 189. Sanhorn v. Rice, 129 Mass. 387, 396. While they are not to be narrowly construed, they are not to be unduly enlarged. The original grantor saw fit to insert in the deeds which it gave a restriction that only dwelling-houses should be built on these lots. The court have found that the building which the defendant proposes to erect will be a dwelling-house. It is possible that, if the original grantor had anticipated the erection of a building like that which the defendant is about to put up, it would have inserted in its deeds some restriction to meet it. It is also possible that it did anticipate it, and that the restrictions which the deed contains embody all that th¿ original grantor thought it wise to insert. Taking the deed as it stands, we do not see anything in it which should lead us to the conclusion that the defendant will violate any restriction, express or implied, in regard to the building of an L, in the proposed manner of constructing his building. Bill dismissed.