Evans v. Foss

• Decision Date: 01 March 1907
• Citation: 194 Mass. 513,80 N.E. 587
• Parties: EVANS v. FOSS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

194 Mass. 513

80 N.E. 587

EVANS v. FOSS.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1907

COUNSEL

Wilmot R. Evans, Jr., for plaintiff.

Hollis R. Bailey and George W. Matthews, for defendant.

OPINION

KNOWLTON C.J.

The plaintiff seeks by this bill to obtain an injunction to prevent the erection of a garage by the defendant on Newbury street in Boston. The case was reserved by a justice of the superior court upon the pleadings, his findings of fact, and the evidence taken before a commissioner. The plaintiff is the owner of a house and lot on Newbury street, very near the defendant's lot on which he began to build a garage. In the deeds under which the respective parties claim title there is a restriction, as follows: 'No building shall be erected on said described premises except outhouses to dwellings, the exterior walls of which shall be of any other material than brick, stone or iron, nor shall any building erected thereon be used or occupied for a stable, either livery, public or private, for carpenter shops, white or blacksmith shops, or for any foundry, mechanical or manufacturing purposes, or for any other business which shall be offensive to the neighborhood for dwelling houses.' The presiding justice found that the purpose of this restriction in the deed of Whitney and others, trustees, to Fairchild, under which both parties claimed, was a 'furtherance of a general scheme for the improvement of the granted property, and that the same were imposed to benefit the premises conveyed.' It is a familiar principle of law, which has been applied in many cases, that when one makes deeds of different portions of a tract of land, each containing the same restriction upon the lot conveyed, which is imposed as a part of a general plan for the benefit of the several lots, such a restriction not only imposes a liability upon the grantee of each lot as between him and the grantor, but it gives him a right in the nature of an easement, which will be enforced in equity against the grantee of one of the other lots, although there is no direct, contractual relation between the two. through the common character of the deeds the grantees are given an interest in a contractual stipulation which is made for their common benefit. Whitney v. Union Railway Co., 11 Gray, 359, 71 Am. Dec. 715; Parker v. Nightingale, 6 Allen, 341, 83 Am. Dec. 632; Linzee v. Mixer, 101 Mass. 512; Dorr v. Harrahan, 101 Mass. 531, 3 Am. Rep. 398; Peck v. Conway, 119 Mass. 546; Tobey v. Moore, 130 Mass. 448; Hano v Bigelow, 155 Mass. 341, 29 N.E. 628; Payson v Burnham, 141 Mass. 547, 6 N.E. 708; Hopkins v. Smith, 162 Mass. 444, 38 N.E. 1122; Hills v. Metzenroth, 173 Mass. 423, 53 N.E. 890. The judge was right in finding that the lots owned by the respective parties come within the principle which makes each subject to the restriction, and gives the owner of each a right to enforce the restriction against the others. By agreement of the parties, besides extracts from deeds and deeds in full, different title books, containing abstracts of titles, were put in evidence by the plaintiff. These contained the material facts about many titles, in greatly abbreviated language. It is contended by the defendant that these do not go far enough to establish the facts upon which the plaintiff seeks to rely. But they are entirely intelligible to one familiar with the subject to which they relate, and having been put in evidence without objection, they may be interpreted according to their manifest meaning, although the meaning is not expressed by a full statement in words. The original of the restriction relied upon is found in a deed from the Boston Water Power Company to Whitney and others, trustees, conveying three large parcels of land on the Back Bay, under date of October 16, 1880. We find it, in substantially the same form, in deeds of different parts of this property, one from Whitney and others, trustees to S. Endicott Peabody, under date of June 13, 1883, one to Abbott Lawrence, under date of January 30, 1886, and one to Charles T. Fairchild, under date of March 6, 1886. These three deeds include nearly all of the third parcel conveyed to Whitney and others, trustees, by the Boston Water Power Company. When the land on Newbury street conveyed to Charles T. Fairchild was subdivided into small building lots, the restriction was inserted in the deeds of the different building lots, and it has been continued in the conveyances since. Deeds from Whitney and others, trustees, of portions of other parcels, included in their purchase from the Boston Water Power Company, contained the same restriction. While not all the conveyances...