| Mass. | Feb 24, 1881
The rule against perpetuities, which governs limitations over to third persons to take effect in the future, has never been held applicable to conditions, a right of entry for the breach of which is reserved to the grantor or devisor and his heirs, and may be released by him or them at any time. Sugd. Vend. (14th ed.) 596. Gray v. Blanchard, 8 Pick. 284. Austin v. Cambridgeport Parish, 21 Pick. 215. Brattle Square Church v. Grant, 3 Gray, 142,148, 161. French v. Old South Society, 106 Mass. 479" court="Mass." date_filed="1871-03-15" href="https://app.midpage.ai/document/french-v-old-south-society-in-boston-6416403?utm_source=webapp" opinion_id="6416403">106 Mass. 479. Cowell v. Springs Co. 100 U.S. 55" court="SCOTUS" date_filed="1879-11-17" href="https://app.midpage.ai/document/cowell-v-springs-co-90012?utm_source=webapp" opinion_id="90012">100 U. S. 55.
But this case does not require us to consider whether there are any conditions, strictly so called, to which the rule should be applied. The provision in the deed before us is not a common-law condition; for the deed expressly provides that any breach of it shall not work a forfeiture of the estate. It does not affect the title, but only the mode of use; and, though unlimited in point of time, it is a valid restriction, which equity
Independently of the other facts in the case, the deed to Little and Brown, — under which both parties to this suit claim title, and of the contents of which they had notice,—by applying the restrictions to many distinct lots of land on different streets, supplies the evidence (which was wanting in Dana v. Wentworth, 111 Mass. 291" court="Mass." date_filed="1873-01-15" href="https://app.midpage.ai/document/dana-v-wentworth-6417123?utm_source=webapp" opinion_id="6417123">111 Mass. 291) of a general scheme for the improvement and benefit of all the lands included in a large tract, which a grantee of any part of the land may enforce against his neighbor. Parker v. Nightingale, 6 Allen, 341. Linzee v. Mixer, 101 Mass. 512" court="Mass." date_filed="1869-03-15" href="https://app.midpage.ai/document/linzee-v-mixer-6415701?utm_source=webapp" opinion_id="6415701">101 Mass. 512. Sharp v. Ropes, 110 Mass. 381" court="Mass." date_filed="1872-10-15" href="https://app.midpage.ai/document/sharp-v-ropes-6416998?utm_source=webapp" opinion_id="6416998">110 Mass. 381. Jeffries v. Jeffries, 117 Mass. 184" court="Mass." date_filed="1875-02-26" href="https://app.midpage.ai/document/jeffries-v-jeffries-6418015?utm_source=webapp" opinion_id="6418015">117 Mass. 184. Renals v. Cowlishaw, 9 Ch. D. 125, and 11 Ch. D. 866.
The restriction against building “within eight feet of said streets” named in the deed has reference to the line of each street as existing at the date of the deed, and is intended to establish a uniform rule as of that date, which cannot be affected by the subsequent widening or narrowing of either street by public authority, or by the fact whether a building is erected before or after such alteration of the line.
The sale of groceries and provisions is not one of the trades or callings enumerated in the deed, and cannot be considered as a “ nauseous or offensive trade,” or a purpose “ which shall tend to disturb the quiet or comfort of the neighborhood,” within the meaning of the restrictions. In Dorr v. Harrahan, 101 Mass. 531" court="Mass." date_filed="1869-03-15" href="https://app.midpage.ai/document/dorr-v-harrahan-6415702?utm_source=webapp" opinion_id="6415702">101 Mass. 531, cited for the plaintiff, the defendant attempted to set up a grocer’s shop, when expressly restricted from erecting anything but a dwelling-house.
Decree accordingly.