Attorney Gen. v. Algonquin Club

• Decision Date: 01 April 1891
• Citation: 153 Mass. 447,27 N.E. 2
• Parties: ATTORNEY GENERAL v. ALGONQUIN CLUB
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

153 Mass. 447

27 N.E. 2

ATTORNEY GENERAL

v.ALGONQUIN CLUB

Supreme Judicial Court of Massachusetts, Suffolk.

April 1, 1891.

Report from supreme judicial court, Suffolk county.

A.J. Waterman, Atty. Gen., H.A. Wyman, Asst. Atty. Gen., and H.N. Shepard, for plaintiff.

Geo. Putnam, for defendant.

C. ALLEN, J.

The general provision in the deeds under which the defendant holds its title is that “the front wall of any building erected on the premises on Commonwealth avenue shall be set back 20 feet from said Commonwealth avenue;” but in this reserved space of 20 feet “steps, windows, porticoes, and other usual projections appurtenant to said front wall are to be allowed,” subject to certain limitations. The first question arises upon the meaning of the words, “and other usual projections.” The general front wall of the defendant's club-house, above the basement story, is set back 20 feet; but the basement story is built nearer to the avenue than the rest of the building, and is surmounted by a balcony. It has been found that balconies were usual projections in Boston, but “basements surmounted by a balcony, as in this building, have never been usual in Boston, and there was no evidence that they have ever been usual in this country; but they are usual in European architecture, and are well known to cultivated architects, and are a natural incident, but not a necessary feature, of a building of the class to which this club-house belongs.” The question is, whether, under these circumstances, the basement projection is to be deemed a usual projection, within the meaning of the deeds. The general object of the provision is manifest. The avenue, it is said without dispute, was laid out by the commissioners of the commonwealth of the width of 200 feet, and it was designed to secure a further space of 20 feet on each side, which should be substantially free from buildings. The language is a modification, adopted in 1863, of language used in earlier deeds, and it was no doubt adopted after much consideration,and it was thereby intended to define limits which should not be infringed upon. No projections within the line of 20 feet are to be allowed, except steps, windows, porticoes, and other usual projections. In the next clause “door-steps and balustrades connected therewith, and cornices at the roof of the building,” are specified as projections which are allowable. It is then provided that “no projection in the nature of a bay window, circular front, or octagon front, with the foundation wall sustaining the same, (such foundation wall being a projection of the front wall,) will be allowed,” unless within certain defined limits, and extending over only a certain portion of the front of the building. No other projections are mentioned in the deeds. These various provisions serve to throw some light upon the meaning of the words, “other usual projections appurtenant to said front wall.” And looking at the general object of the provision,-at the collocation of the words allowing other usual projections appurtenant to the front wall, and its close connection with other enumerated projections,-steps, windows, porticoes,-and at the express restriction that no projection in the nature of a bay window, circular front, or octagon front, with the foundation wall sustaining the same, will be allowed, except to a limited extent not reaching over the whole front, we find it impossible to accept the conclusion that a whole basement story may be advanced into the reserved space. Giving as wide a scope as we deem permissible to the words, “other usual projections,” they must at the least be such projections as were usual in this country at the time the deeds of the commonwealth were given. If the builders desire a greater scope for ornamentation and variety in the erection of a building than this will allow, it must be obtained by setting back the front wall. Upon the facts stated, the projection of the basement story cannot be deemed a usual projection, within the meaning of the deeds; and whether the restriction was wise or not, and whether or not the enforcement of it will have a tendency to check elegant architecture, we cannot do otherwise than give effect to the meaning of the words adopted by the officers of the commonwealth, when once that meaning is ascertained.

Since the projecting basement story cannot stand as a usual projection, any projection from the line of 20 feet which can be vindicated must come under some other head. The projections which are allowed within the reserved space of 20 feet are subject to certain limitations, namely: “No projection of any kind, other than door-steps and balustrades connected therewith, and cornices at the roof of the building, will be allowed to extend more than five feet from said front wall into said space. No projection in the nature of a bay window, circular front, or octagon front, with the foundation wall sustaining the same, (such foundation wall being a projection of the front wall,) will be allowed, unless any horizontal section of such projection would fall within the external lines of a trapezoid, whose base upon the rear line of the aforesaid space does not exceed seven-tenths of the whole front of the building, nor exceed eighteen feet in any case, and whose side lines make an angle of forty-five degrees with the base; and each house in a block shall be considered a separate building, within the meaning of this limitation.” The defendant's club-house has a front of 82 feet, and the basement story is so constructed that certain portions of the front wall, called “screens,” can be removed, and if this is done it will then appear that the projections of the basement comprise a porch at the center of the building, with two bay windows in each side of it. These bay windows are built so near to each other that the bases of their trapezoids overlap each other, and the sum of the bases of the trapezoids is more than seven-tenths of the whole front of the building. The defendant contends that this may properly be done, and that, to take a strong illustration, a series of narrow projecting windows might be built from the ground, with only a small space between them, with the bases of their trapezoids far overlapping each other, and the sum of the bases not only exceeding seven-tenths of the whole front of the building, but even exceeding the whole length of its entire front. The defendant contends that there is nothing in the language of the limitation in the deeds which would prevent this from being done, however unlikely it is that any architect or builder would adopt such a method of construction. This argument overlooks or disregards the general purpose of the provision, which was to secure a space of 20 feet from the avenue which should be substantially free from buildings. Certain projections into this space were allowed, but great pains were taken to limit the amount and character of them. If the front of the building is so wide as to admit of the erection of more than one such bay window, to allow the bases of the trapezoids of the several bay windows to overlap each other would be to allow the reserved space to be substantially occupied, instead of keeping it substantially clear. The privilege which is given by the...