Attorney Gen. v. Gardiner

• Decision Date: 08 May 1875
• Citation: 117 Mass. 492
• Parties: Attorney General v. William H. Gardiner
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

117 Mass. 492

Attorney General v. William H. Gardiner

Supreme Court of Massachusetts

May 8, 1875

Argued November 21, 1874 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Suffolk. Information in equity, filed August 16, 1867, by the attorney general, in behalf of the Commonwealth, to restrain the construction and compel the removal of a projection or structure in front of the defendant's house on Commonwealth Avenue in Boston.

Hearing upon information, answer, replication and proofs before Colt, J., who made a report to the full court, referring to the information and answer as parts thereof, reserving all questions as to the form of the proceeding and the parties thereto, and by which it appeared that the following facts, alleged in the information, were admitted by the defendant:

The Commonwealth in and before 1856 was seised of certain lands in the Back Bay in Boston, formerly covered by tide water. By the Resolve of 1856, c. 76, the Legislature appointed a committee with full authority, subject to the approbation of the governor and council, either to release, upon such terms and conditions as they should think fit, the right, title and interest of the Commonwealth in and to any and all of the lands in the Back Bay, or "to devise plans for the improvement of said territory, or any part thereof," and adjust and compromise all differences, disputes and claims with any parties interested, or claiming any right, title or interest, in any lands in the Back Bay.

The committee appointed under that resolve devised a scheme for the improvement of said lands, and a plan of the premises was prepared and approved by the committee, and copies thereof filed in the registry of deeds on September 2, 1858, and with this information. One of the contemplated streets laid out on that plan was called Commonwealth Avenue, beginning at the street west of the Public Garden, called Arlington Street, and extending westwardly a mile and a half towards Brookline, two hundred feet in width, with ornamental spaces in the middle thereof one hundred and twelve feet wide, and with spaces twenty feet in width left open for turf and shrubbery upon the front of the lots. And the committee devised, as part of said scheme, that all houses built upon this avenue should be set back twenty feet from the front lines of the lots, and that spaces twenty feet in width should be left open for turf and shrubbery in front of the houses.

On December 27, 1856, an indenture between the Commonwealth and the Boston Water Power Company, a corporation largely interested in adjacent lands, was executed and acknowledged by that corporation, and by the legislative committee and the commissioners on the Back Bay in behalf of the Commonwealth, and presently afterwards approved by the governor and council, and such approval certified, by their direction, by the secretary of the Commonwealth upon the indenture, and the same recorded in the registry of deeds. By that indenture, provision was made for filling up the lands in the Back Bay with earth and gravel; it was agreed that Commonwealth Avenue should be laid out of the clear width of two hundred feet, of which not less than forty-four feet on each side should be appropriated and used as a street, part to be roadway and part sidewalk, and to remain forever open and unobstructed; and the centre, one hundred and twelve feet in width, "be appropriated for a walk, the planting of trees, shrubbery and grass, and otherwise ornamented, so as to exclude carriages, horses, and other vehicles and animals from the same, excepting when intersected by streets or avenues;" it was further agreed by the parties to the indenture that buildings "shall never be erected on the lots belonging to either party bounding on said avenue, any part of which buildings shall be within the distance of twenty feet from the front line of such lots; provided, however, that fences may be erected and maintained on the said front line of said lots, and steps and other usual projections from the fronts of said buildings may be made within said distance of twenty feet from said front line;" the Commonwealth covenanted to lay out, and did thereby lay out, "so much of said avenue herein described, of the width of two hundred feet, as passes through the land belonging to said Commonwealth; that neither said Commonwealth nor its assigns shall ever erect, or cause to be erected, any building on the lots bordering on said avenue, within twenty feet from the lines thereof on either side; and that said avenue shall be kept open and used for the purposes and in the manner hereinbefore mentioned and described, forever;" and the Boston Water Power Company made like covenants with respect to so much of the avenue as passed through its lands.

On May 2, 1860, the Commonwealth conveyed a parcel of land, with a front of three hundred and thirty-four and a half feet, on the northerly side of Commonwealth Avenue, between Arlington and Berkeley Streets, and bounded by Berkeley Street on the west, to Samuel Hooper, by warranty deed, referring to said plan, and "subject to the provisions hereinafter contained:"

"Said premises to be filled up by the Commonwealth to a level not 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.

"This conveyance is made upon the following stipulations and agreement: That any building erected on the premises shall be at least three stories high for the main part thereof, (or two stories with a Mansard roof,) and shall not in any event be used for a stable, except a private stable, or for any mechanical, mercantile or manufacturing purposes; that the front wall thereof on Commonwealth Avenue shall be set back twenty feet from said Commonwealth Avenue; provided that steps, windows, porticos and other usual projections appurtenant thereto are to be allowed in said reserved space of twenty feet. That the streets in said Back Bay, on which said premises bound, shall be filled up and graded, and the curb-stones set, and the gutters thereof paved by the Commonwealth, and that the same shall be forever kept open to be used for all the purposes for which public highways may be lawfully used, except horse railroads; provided, that the owners of said lands for the time being shall have the right to cultivate trees in the sidewalks, in front thereof leaving a distance of not less than ten feet between the front lines of the lots and such trees. That no cellar or lower floor of any building...