Attorney General v. Ayer

• Decision Date: 28 February 1889
• Citation: 20 N.E. 451,148 Mass. 584
• Parties: ATTORNEY GENERAL ex rel. BOARD OF HARBOR AND LAND COMMISSIONERS v. AYER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

148 Mass. 584

20 N.E. 451

ATTORNEY GENERAL ex rel. BOARD OF HARBOR AND LAND COMMISSIONERS v. AYER et al.

Supreme Judicial Court of Massachusetts, Suffolk.

February 28, 1889

HEADNOTES

COUNSEL

A.J Waterman, Atty. Gen., and H.C. Bliss, Asst. Atty. Gen. W.G. Russell, Geo. Putnam, and J. Fox, for defendants.

OPINION

HOLMES J.

The allowance of "steps, windows, porticoes, and other usual projections appurtenant to said front wall," in the reserved space of 22 feet, is shown not to be confined to projections closely similar to porticoes, using that word in a narrow sense, by the limitation set upon the allowance when the projection is in the nature of a bay window or octagon front. Bay windows and octagon fronts cannot be said to resemble porticoes, however the word "portico" be interpreted. The general scope of the permission, then, is to sanction any projections incident to the front wall which are usual in the sense that porticoes are usual. The word "other" imports of course that porticoes are usual, within the meaning of the deed. Hubbard v. Taunton, 140 Mass. 467, 468, 5 N.E. 157. The same considerations which show the extended scope of the permission, make against a narrow and restricted interpretation of the word "porticoes." If there is a permission to put out bay windows and octagon fronts, there is no conceivable reason why porches should be forbidden. The attorney general sought to interpret the requirement that certain structures should fall within the trapezoid, as a new permission. But plainly it is not so, but is a qualification of a permission already given to put out porticoes and other usual projections. If this porch was not permitted under the head of porticoes and other usual projections it was not permitted at all. See Linzee v Mixer, 101 Mass. 512; Attorney General v. Gardiner, 117 Mass. 492, 500. Etymologically the words "porch" and "portico" are one. Formerly "porch" was used as synonymous with "portico" in its classic sense. "And he made a porch of pillars; the length thereof was fifty cubits." 1 Kings, vii. 6; Id. 7, 8, 12, 19, 21; vi. 3; 2 Chron. iii. 4; Julius Caesar, Act I. Sc. 3; Paradise Lost, I. 454. So, sometimes to-day, "rooms which gave upon a pillar'd porch." Tennyson's "Princess," I. 226, 227. The tendency in modern times no doubt has been to diminish "porch" to the shelter in front of the door of a building, and we are very willing to assume that, with the constant growth of distinctions and nice discriminations in the meaning of words, "portico" retains more of the original suggestion of length, and of a roof supported by pillars, among architects and scholarly persons, and that "porch" is more specially appropriated to a smaller structure, generally with closed sides. But the distinction is not carefully preserved in common speech. With us "portico" as well as "porch" has shrunk, and usually means a shelter in front of a door. See, also, Dychr. & Pardon, Dict.1754; Imperial Dict.1882, "Portico." When porticoes are cut down to the little structures which we all know, we think that special reference to the mode of support...