American Unitarian Ass'n v. Minot

• Decision Date: 19 May 1904
• Citation: 71 N.E. 551,185 Mass. 589
• Parties: AMERICAN UNITARIAN ASS'N v. MINOT et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

185 Mass. 589

71 N.E. 551

AMERICAN UNITARIAN ASS'N

v.MINOT et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 19, 1904.

Petition by the American Unitarian Association against one Minot and others.Decree rendered.

The following is the plat referred to in the opinion:

Image 1 (4.57" X 4.34") Available for Offline PrintHenry W. Putnam, for petitioner.

Alpheus Sanford and Geo. E. Smith, for respondent McAleer.

Harrison M. Davis, for respondent Minot et al.

LORING, J.

This is a petition under St. 1889, p. 1168, c. 442, now Rev. Laws, c. 182, § 11, in which the petitioner seeks to have it decided that the equitable restriction is no longer in force which was created by two deeds executed and recorded in 1843, under which it claims title.The land of which the parcel now owned by the petitioner was then a part was divided into building lots at that time by the owners of it, and they caused the accompanying plan of it to be made and recorded.It is there divided into six lots, with a frontage on Beacon street varying from 27 to 33 feet.There is a line on the plan, entitled ‘Front Line of Buildings,’ which is 15 feet back from the northerly line of Beacon street at its easterly end, and 20 feet back from that northerly line at its westerly end.All six lots were conveyed by deeds dated October 27, 1843, and acknowledged, two on November 1st, one on November 9th, one on November 10th, one on November 13th, and the other on November 16th.The deeds under which the plaintiff claims title were acknowledged on November 9th and 13th.In the deed of lot 2 is this clause: ‘But this conveyance is with the restriction that the front line of the house to be built on the lot thereby granted shall be set back from the Northerly line of Beacon street as marked and layed down on said plan, except that said Preston shall elect to build a house with a swelled front and in such case he may place the extreme swell three feet out from said front line, and the partition walls above the cellar floor shall be of the thickness of one brick and a half, unless the owners of the adjoining lots shall otherwise agree with said Preston and the walls shall be erected on the dividing line of the lots, one-half on each lot, and if the owner of either lot shall refuse to build on the request of the owner of the adjacent lot, the latter shall have the right to erect the wall and the owner shall pay one-half part of the reasonable cost thereof, or of such portion of the same as he shall at any time thereafter use.The above-granted premises being the same which are delineated on a plan by Alexander Wadsworth as lot No. 2, which plan is recorded herewith in Suffolk Registry.’In the deed of each of the other lots, except lot 1, is the same clause, excepting only the number of the lot inserted in the final sentence as the number of the lot conveyed.There is a similar clause in the deed of lot 1.In that clause it is provided that ‘the house to be built on the lot hereby granted shall be set back twenty feet from the Northerly line of Beacon street as marked on the plan hereinafter mentioned.’The petitioner is the owner by mesne conveyance of the whole of lot 1, and all of lot 2 except the northerly jog and one foot on the east, which were conveyed to the owner of lot 3 in November of the same year, 1843.

It appears that six private four-story brick dwelling houses, each with a swell front complying to the restrictions, were erected on the several lots immediately after the delivery of said deeds, and were occupied as residences until 1884 in case of lots 1 and 2, when those lots, with the negligible exceptions already stated, were sold to the petitioner, and, in case of lots 3, 4, and 5, until they‘were removed recently, and the Hotel Bellevue, an eleven (11) story steel frame structure, was erected in their place, and upon the adjacent part of lot 7, while that on lot six (6) has been lately increased two stories in height, and otherwise altered to adapt it to use in connection with said hotel.’

The petitioner concedes that the two lots now owned by it were originally subject to an equitable restriction imposed for the benefit of the other four lots; but it contends that this restriction should be construed as the restrictions then in question were construed in Hubbell v. Warren, 8 Allen, 173,Hamlen v. Keith, 171 Mass. 77, 50 N. E. 462, andBoston Baptist Social Union v. Boston University, 183 Mass. 202, 66 N. E. 714, namely, to be restrictions confined to the first building erected, and which expired when that was torn down.The two dwelling houses erected on the two lots now owned by the petitioner were torn down, as we have said, in 1884; and, if the petitioner's contention is correct, this restriction on these two lots came to an end at that time.In each of the three cases already mentioned as cases relied on by the petitioner, there was an important consideration which does not obtain here.In Hubbell v. Warren the agreement relied on was not found in the deed of conveyance, but was in the form of a collateral oral agreement.What the exact terms of that agreement were, did not appear.In Hamlen v. Keith there was no equitable restriction providing in terms for a building line.To make out such an equitable restriction, the plaintiff relied on a common-law condition imposed in 1795, that ‘all buildings to be erected on the lands sold by virtue of this vote shall be regular and uniform, and of brick or stone, and covered with slate or tile, or some materials that will resist fire.’The conclusion of the court is summed up in these words: ‘We are of opinion that the words are given sufficient force if they are confined, at most, so far as the present question is concerned, to the original construction of the buildings first erected-those which it was expected would be erected, and which were erected, in fact, soon after the town had made its sales.It seems to us that it would be going too far to interpret the words as binding the owner of every lot into which the land might be cut up to adhere for all time, and under whatever change of conditions and circumstances, to a building line other than that of the conveyances, determined by the accident of what the first builder chose to do.’In Boston Baptist Social Union v. Boston University, 183 Mass. 202, 66 N. E. 714, the grantor of the deed containing the clause relied on as establishing the restriction did not own the adjoining land at the date of that conveyance, which the defendant in that case contended it was entitled to enforce.The court passed by that difficulty in the way of the defendant in making out its right (a difficulty like that dealt with in the subsequent case of Hazen v. Matthews, 184 Mass. 388, 68 N. E. 838), and assumed that it was not of itself fatal.But that fact constituted an important consideration in construing the words ‘the house to be erected;’ which were the words of that agreement, as they are of the agreement...