Allen v. Massachusetts Bonding & Ins. Co.

• Decision Date: 09 April 1924
• Citation: 248 Mass. 378,143 N.E. 499
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: ALLEN et al. v. MASSACHUSETTS BONDING & INS. CO.

248 Mass. 378

143 N.E. 499

ALLEN et al.

v.MASSACHUSETTS BONDING & INS. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

April 9, 1924.

Case Reserved from Supreme Judicial Court, Suffolk County.

Suit in equity by Thomas Allen and others against the Massachusetts Bonding & Insurance Company to prevent the erection on land of the defendant of a building so constructed that its cellar will be more than four feet below a specified level. On report. Decree for plaintiffs.

R. Homans and F. Allen, both of Boston, for plaintiffs.

F. W. Knowlton, of Boston, and Stanley B. Ecker, of New York City, for defendant.

A. P. Loring and J. Noble, both of Boston, amici curiae.

RUGG, C. J.

This is a suit in equity to prevent, by the enforcement of an alleged restriction, the erection on land of the defendant of a building so constructed that its cellar or lower floor will be placed ‘more than four feet below the level of the milldam as fixed by the top surface of the hammered stone at the southeasterly corner of the emptying sluices.’ These words are quoted from deeds from the commonwealth as grantor under which through mesne conveyances the plaintiffs and the defendant claim their titles. Translated into modern terms the grade thus established is 12 feet above mean low water in Boston harbor and is about the mean of high tides.

The parcels of land of the several parties are within the Back Bay district of Boston. The part of that district with which the present case is concerned comprises an area lying between and including Arlington street on the east and Exeter street on the west and the south side of Beacon street and the north side of Boylston street on the north and south respectively. The entire Back Bay district was originally tidal flats used for mill purposes. The title to a portion of these flats was in the commonwealth. On account of house drainage from surrounding territory, the condition of these flats had become a nuisance by 1850. It was determined by filling to render them available for building purposes and thus a source of profit to the commonwealth and to abate a nuisance. Agents of the commonwealth were appointed pursuant to appropriate legislation, with power to lay out and fill the Back Bay and sell it in lots for building purposes. The dominant design was to provide an attractive neighborhood for dwelling houses, then regarded as a pressing need, to convert a ‘waste of water into a magnificent system of streets and squares,’ with a central avenue having a middle portion devoted to ornamental gardening and aesthetic adornment, and to make an adequate system of drainage, recognized as ‘by far the most perplexing and most important question.’ The streets were filled to a grade of 18 feet above mean low water and the rest of the area to a grade of 12 feet above the same level. When the Back Bay had been laid out and filled, the commonwealth began making sales with lots of land, the first being in 1857. The original deeds from the commonwealth under which the defendant derives title contained the provision that ‘this conveyance is made upon the following stipulations and agreement.’ Then follow regulative restrictions as to the minimum height of any building erected on the premises, as to its use, as to its setback from the street line and projection into the reserved space, as to the filling and grading of the streets by the commonwealth, as to the maximum depth of the cellar or lower floor already quoted, as to the laying out, filling and maintenance of a passageway in the rear and an agreement by the commonwealth to construct a sewer in such passageway and to assess the cost on the abutters. The deeds of lots on the central avenue of the Back Bay, called Commonwealth avenue, and the deeds of three or four other lots contained the restriction that no building erected thereon should be used for any mercantile purposes in addition to restrictions against the use for mechanical or manufacturing purposes which were in all other deeds. The setback from the street line required in the deeds of lots on Commonwealth avenue was 20 feet and in deeds of other lots 22 feet. With these exceptions and with some variations not here material, all the deeds of land in the Back Bay district contained substantially the same stipulations and agreement as the original deed through which the defendant claims title, save that after 1863 new and more specific provisions were inserted as to permissible projections in the reserved space between the building and the street. All the deeds contain the same or substantially the same words quoted in the first sentence of this opinion as to the depth of cellars or lower floors. The streets and sewers were built as indicated by the deeds, buildings were erected and the entire plan of development was carried out.

The master in his report gives a full account of the Back Bay sewerage system and its development. When the flats were filled, the system was a series of main drains emptying into the Charles river, generally at flat grade and of such size as to afford some storage. These main drains were made of brick and wood and tile, running at right angles to Beacon street and following street lines, a main in every other street. The east to west sewers, flowing into the main drains, were generally laid in the passageways, constructed of pipe, and took ground and surface water as well as house drainage. These were not tight. The house drains were often of pipe but many were of wood, brick and slate. When the tide was above the level of the sewer outlet, there was discharge until the level of the water in the sewer by storage and backing up exceeded the height of the tide. There were then no entirely effective devices to prevent back flow into the houses. Subsequent to the time when the scheme for development of the Back Bay district was devised and all the sales made by the commonwealth, a supplementarysystem of drainage for it has been planned and installed, consisting in part of intercepting main sewers and in part of a marginal conduit in connection with the Charles river basin. Notwithstanding these improvements, during heavy rains water still backs up into the old mains and through the leaks in them into the filled area and there mingles with the ground water. In such case house sewage to some extent will be mingled with the drain water.

There have been developed, since the creation of these stipulations, methods of water proofing single and separate cellars so as to make them impervious to water regardless of their depth, and pumps whereby sewage and drainage from the bottom of such deep cellars may be lifted to the level of the street sewers and discharged into them.

The master has found as inferences from the other facts found by him and stated in his report that:

‘(a) The stipulations and agreement contained in the deeds by the commonwealth were adopted by the commonwealth as a part of a general scheme for the development and improvement of its Back Bay lands and for the sale of those lands to purchasers at enhanced prices. (b) The stipulation ‘that no cellar or lower floor of any building shall be placed more than four feet below the level of the mill dam, as fixed by the top surface of the hammered stone at the southeasterly corner of the emptying sluices' was a part of such general scheme. (c) The stipulation in regard to depth of cellars just quoted was inserted for the benefit of the persons purchasing land from the commonwealth, and those holding under them, and not solely for the benefit of the commonwealth.’

So far as these are matters of fact, they are settled by these findings. Hano v. Bigelow, 155 Mass. 341, 343, 29 N. E. 628;Bacon v. Sandberg, 179 Mass. 396, 398, 60 N. E. 936. If and so far as they are subject to review by us, we draw the same inferences from the facts set forth in the report. So far as they are matters of law, it is a necessary implication from all the facts in the master's report that the stipulation as to the depth of cellar or lower floor already quoted and inserted in the deeds through which the defendant holds title and here sought to be enforced, was a part of a general scheme. The commonwealth in laying out the Back Bay acted both as proprietor of land, which it held and might sell as an individual might, and as the sovereign possessing power to lay out highways and construct sewers for the benefit of the public.

The inquiry in this respect is to ascertain the intention of the parties in executing and accepting the deeds. That intention is to be found in the words used interpreted in the light of all the material circumstances and the pertinent facts known to the parties. A servitude over one parcel of land for the benefit of another can be established only when it appears to have been the intention of the grantor by inserting in his deed words of restriction to create a right inuring to the benefit of another parcel of land and to be annexed to it as an...