Bacon v. Sandberg

• Citation: 60 N.E. 936,179 Mass. 396
• Parties: BACON et al. v. SANDBERG et al.
• Decision Date: 19 June 1901
• Court: United States State Supreme Judicial Court of Massachusetts

179 Mass. 396

60 N.E. 936

BACON et al. v. SANDBERG et al.

Supreme Judicial Court of Massachusetts, Middlesex.

June 19, 1901

COUNSEL

Thomas Weston, Jr., for appellants.

Albert P. Carter, for appellees.

OPINION

LATHROP, J.

This is a bill in equity, filed June 14, 1898, in the superior court to enforce certain restrictions contained in a deed to one Rundstrom, whose title the defendant Sandberg has. The last-named defendant is a tenant of Sandberg. The facts are as follows: In 1887, one Clark, as trustee, who was the owner of a large tract of land in Everett on one side of Main street, caused it to be divided into lots, with streets running through it, and filed a plan of the same in the registry of deeds. Between 1887 and 1894 Clark sold all of these lots, and has no land remaining in this vicinity. The lot now owned by Sandberg was conveyed subject to four restrictions: (1) 'That no building or structure of any kind shall be placed on the premises at any time within thirty years after the date of this deed within thirteen feet of Beacon street;' (2) 'that no house shall be built on said granted premises which shall be less than two stories in height, exclusive of cellar and attic, or which shall cost less than $2,000;' (3) 'that no building, and no part of the same, on said granted premises shall be used for manufacturing or mechanical purposes or occupations;' (4) 'that no livery stable or pig pen and no offensive structure of any kind, shall be built or maintained on said granted premises, but a private stable for the horses of the occupants of said granted premises may be placed on the rear part thereof, no portion of such stable to be less than fifty feet south of the southerly line of said Beacon street, or less than sixty feet east of the easterly line of said Main street.' The defendant Sandberg put up a one-story building on the lot conveyed to her, all of which is occupied feet of Beacon street, and which is occupied as an office by the last-named defendant, who is a real-estate dealer, an insurance agent, a carpenter, and a plumber.

The first defense set up is that, as the common grantor sold out all her interest in the lots, the plaintiffs cannot maintain this bill unless there was a general scheme for the improvement of the property, and the restrictions were uniform. While it has been often held that, where an owner divides a tract of land into building lots, and, as a part of a general scheme for its improvement, inserts in the deeds of sale of all the several lots uniform restrictions as to the purposes for which the land may be used, such provisions inure to the benefit of the several grantees, who may enforce them in equity; yet the criterion in this class of cases is the intent of the grantor in imposing the restrictions, whether they are intended for his personal benefit or for the benefit of the lot owners generally; and his intention is to be gathered from his acts and the attendant circumstances. If this sufficiently appears, the fact that as to some lots there are no restrictions simply takes those lots out of the general scheme; and it is not necessary that the restrictions should be exactly the same in all the deeds. Hano v. Bigelow, 155 Mass. 341, 29 N.E. 628; Hills v. Metzenroth, 173 Mass. 423, 53 N.E. 890. In the case at bar it appears that two lots--Nos. 1 and 2--were sold without restrictions. It, however, appears that lot 1 was sold before Beacon street was laid out, or that plan made; and the lot is on Main street, and not on Beacon street. Lot 2 ran back only 22 feet from Beacon street, and would have been useless if restrictions had been placed upon it. The other lots are 75 feet deep from Beacon street. We cannot regard the fact that these two lots were sold without restrictions as inconsistent with the general scheme of the grantor. See Hano v. Bigelow, 155 Mass. 341, 343, 29 N.E. 628, where also two lots were sold without restrictions. Then it is urged that the restrictions on the other lots differ from those imposed on the lot in question. The facts are that as to a large number of lots the restrictions are the same as on this lot, except that in the third restriction the words 'trade or manufacture' are substituted for 'manufacturing or mechanical purposes.' Bucknam street bounds all the lots on the east, and there is a restriction as to the lots bounding on that street requiring the houses to be built thereon to be set back 13 feet. There are two lots bounding on Beacon street and Bucknam street. The deed of one lot mentions a stable, and that of the other...