319 Mass. 153 | Mass. | 1946
This ip a suit in equity brought to enforce compliance with certain restrictions imposed on a tract of land in Marblehead. From a final decree granting the relief sought the defendants appealed. There is a report of material facts, and the evidence is reported. G. L. (Ter. Ed.) c. 214, §§ 23, 24. As to our duty with respect to an appeal in these circumstances, see Trade Mutual Liability Ins. Co. v. Peters, 291 Mass. 79, 83-84; MacLennan v. MacLennan, 316 Mass. 593, 595.
The facts may be summarized as follows: In 1926 the plaintiff corporation became the owner of a parcel of land (containing about twenty-five acres) in Marblehead. For development purposes the plaintiff divided it into one hundred lots suitable for dwellings in accordance with a subdivision plan which was recorded in the registry of deeds. The development is known as Greystone Beach. Eighty of these lots have been sold, and on a number of them "dwelling
The defendants are the owners of lots 15
The judge found that the restrictions were imposed by the plaintiff "for the mutual benefit of all the land and of all the owners of the various lots . . . including the twenty lots still owned by the plaintiff,” and ruled that the erection and maintenance of the garage on lot 15 violated the restrictions. He entered a decree in which the defendants were ordered to remove the "garage, stone foundation or base, and cement apron” from the lot within ninety days; they were also permanently enjoined from using the garage.
We think that the facts clearly establish that the restrictions were imposed pursuant to a general scheme designed to achieve substantial uniformity in building or use on every lot in the tract, and that the intention was to attach the benefit of the restrictions upon each lot to every other lot in the tract. The principles of law applicable to cases of this sort have been stated many times and need not be repeated. See Hano v. Bigelow, 155 Mass. 341; Maclary v. Morgan, 230 Mass. 80; Wilson v. Middlesex Co. 244 Mass. 224, 231; Abbott v. Steigman, 263 Mass. 585; Snow v. Van Dam, 291 Mass. 477; Gilbert v. Repertory, Inc. 302 Mass. 105, 107. The plaintiff as owner of land in the tract to which the restrictions are appurtenant may enforce them in equity. Whitney v. Union Railway, 11 Gray, 359. Sanborn v. Rice, 129 Mass. 387, 396-397. Abbott v. Steigman, 263 Mass. 585, 587-588.
The defendants do not question the validity of the restrictions but they contend that there has been no violation of them. We are of opinion that the judge was right in ruling that the erection of the garage in the circumstances here
The judge found that the plaintiff was not guilty of loches. Generally this is a question of fact. Shea v. Shea, 296 Mass. 143, 147. McGrath v. C. T. Sherer Co. 291 Mass. 35, 59-60. The facts as to this aspect of the case need not be recited; it is enough to say that a careful examination of the evidence convinces us that it amply supports this finding.
Finally it has been argued that, if it should be held that the restrictions are violated, the decree was improper in ordering the removal of the garage and its foundation together with the cement apron. The defendants contend that the decree should have been limited to ordering the garage moved back to comply with the set-back requirements, and that the defendants should only be enjoined from using the garage until a dwelling was constructed. We cannot agree. To restrict the decree in this manner, in view of the finding that the defendants had no intention of building a dwelling on the lot and of the fact that there is not space enough to build one under the existing zoning laws, would virtually deprive the plaintiff of the benefits conferred by the restrictions. Nor do we agree with the defendants’ contention that the decree should not have ordered the removal of the stone foundation and cement apron. This was part of the garage and was rightly included in the decree.
Decree affirmed with costs.
This set-back was twenty feet from the front line of the lot.
This lot contains five thousand two hundred sixteen square feet; the frontage is seventy feet and the distance from the front to the rear is about seventy-five feet.