Huldah M. Peck v. James E. Conway &Amp; Another

• Citation: 119 Mass. 546
• Court: United States State Supreme Judicial Court of Massachusetts
• Decision Date: 09 March 1876
• Parties: Huldah M. Peck v. James E. Conway & another

119 Mass. 546

Huldah M. Peck v. James E. Conway & another

Supreme Court of Massachusetts

March 9, 1876

Argued September 15, 1875

Berkshire. Bill in equity, by the owner of lot A. shown on the plan printed in the margin, ^[*] to restrain the defendants, the owners of lots B and C, from building on lot B.

The case was reserved by Colt, J., upon the pleadings and the report of a master, for the consideration of the full court and was as follows:

Richard Ensign, on February 14, 1848, being the owner of lots A and B, and occupying lot A as a homestead, conveyed lot B, in fee simple, with general covenants of warranty, to Joseph B Huggins, who was then the owner of lot C. The deed described the land by metes and bounds, and following the description was this clause: "with this express reservation, that no building is to be erected by the said Joseph B., his heirs or assigns, upon the land herein conveyed."

The defendants purchased lots B and C in 1874. Of the deeds in the chain of title from Huggins, which were all duly recorded before the defendants purchased, some mentioned or referred to the reservation in Ensign's deed, but the deed to the defendants, which contained full covenants of warranty, made no mention of it or reference to former deeds. The defendants made no examination of the records before their purchase, and had no actual knowledge of the reservation.

The plaintiff purchased lot A of Richard Ensign by deed dated April 13, and recorded April 14, 1848. This deed made no mention of privileges or appurtenances, or of the reservation in the deed to Huggins. The defendants purchased their land, paying therefor its full market value, free of incumbrances, for the purpose of building thereon. The plaintiff notified them of the restriction before they commenced building, and forbade them so to do, and, upon their proceeding to build upon the land, brought this bill.

The master found that the greater part of the proposed building would stand upon lot B; that it would not obstruct the view from the front rooms in the plaintiff's house, and only partially obstruct the view from the rooms in the rear part of the house; and that its erection would be no appreciable damage or injury to the plaintiff's premises.

Decree for the plaintiff.

A. J. Waterman, for the plaintiff.

J. Dewey, Jr., for the defendants.

Morton, J. Ames, Devens & Lord, JJ., absent.

OPINION

Morton, J.

Both parties derive title from Richard Ensign. The deed of said Ensign, under which, through various mesne conveyances, the defendants derive their title, conveys to Joseph B. Huggins a triangular piece of land adjoining the lot now owned by the plaintiff, "with this express reservation, that no building is to be erected by the said Joseph B., his heirs or assigns, upon the land herein conveyed." Ensign, being owner of the fee, had the right to sell his land subject to such reservations or restrictions as to its future use and enjoyment as he saw fit to impose, provided they were not contrary to public policy. The restriction in this deed, that no building should be erected upon the land conveyed, was one which he had a right to make, and there is no room for doubt, that, if a building was erected in violation of this restriction, Ensign, as long as he lived and remained the owner of the adjoining land, would be entitled to relief in equity to enforce the restriction. Parker v. Nightingale, 6 Allen 341. Whitney v. Union Railway, 11 Gray 359. Badger v. Boardman, 16 Gray 559.

The only question in the case is whether the plaintiff, who is the grantee of said Ensign, is entitled to the same remedy.

The reservation creates an...