Bailey v. Agawam Nat. Bank
| Decision Date | 02 January 1906 |
| Citation | 76 N.E. 449,190 Mass. 20 |
| Parties | BAILEY et al. v. AGAWAM NAT. BANK. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
S. S Taft and Dexter E. Tilley, for plaintiffs.
Chas H. Beckwith, for defendant.
Prior to December, 1862, one Moore owned the parcel of land on the accompanying plan indicated by the letters A, E, F, D. On this land were two houses; one on parcel A, B, C, D, marked 1, the other on parcel B, E, F, C, which is not shown thereon. On December 1, 1862, Moore conveyed to one Henry in fee lot A, B, C, D, by deed, in which, after the description of the land conveyed, is this provision: The bill of exceptions states that By mesne conveyances parcel A, B, C, D came from Henry to the defendant corporation and was conveyed by it to the plaintiffs by a full warranty deed dated June 15, 1892. This action was brought for breach of the covenant against incumbrances in that deed. The breach complained of is the existence of a passageway over the five foot strip G, B, C, H, part of the parcel A, B, C, D, conveyed to the plaintiff by said warranty deed, which right is, or is in effect, appurtenant to the land B, E, F, C. The main defense set up is that the right to a passageway in favor of lot B, E, F, C, created by this deed over lot G, B, C, H, was a right during the life of the grantor, and that it came to an end on his death, to wit, on December 31, 1893. The case was tried by the court without a jury. The judge ruled that the right of lot B, E, F, C, in the passageway C, K, M, H, was a right in perpetuity, and assessed the damages as of the date of the trial. In assessing the damages the judge proceeded on the basis that 'the right of way was limited in its use to the land mentioned in the deed of Moore to Henry and its use could not be extended for uses in connection with lands beyond.' This refers to lot E, N, O, F, which was not owned by Moore when he conveyed to Henry in December, 1862. The defendant also contended that the right in the passageway was a 'restricted right of way to be used only for purposes incident to the use and occupation of a dwelling house on the dominant estate'; that it had been abandoned; and also that, 'if the court finds for the plaintiffs, the damages should be assessed as of the date of the delivery of the deed.' The judge found for the plaintiff and assessed damages in the sum of $950, stating that: The case is here on exceptions to the refusal to rule as requested by the defendant.
1. As matter of construction of the clause here in question, it was (in our opinion) the intention of the parties to it that the rights in the passageway 10 feet wide, there provided for should be rights in perpetuity, and for the benefit of the two adjoining lots of land. If this clause is to operate in favor of the grantor, Moore, by way of reservation or exception, this intention fails, so far as half the passageway, to wit, lot G, B, C, H, is concerned, for lack of the word 'heirs.' If it is to operate by way of reservation, that is to say, by implied grant by the grantee to the grantor, the word 'heirs' is necessary. Ashcroft v. Eastern Railroad, 126 Mass. 196, 30 Am. Rep. 672. It cannot operate under the Massachusetts doctrine by way of exception, because it is a new way not existing in law or in fact (that is to say, physically on the ground) at the date of the conveyance. Simpson v. Boston & Maine Railroad, 176 Mass. 359, 57 N.E. 674, and cases there cited. But the clause in question does not purport to be a conveyance by way of exception or reservation; it purports to be a contract, which, as we have said, as matter of construction, provides for a passageway in perpetuity for the benefit of the two adjoining lots of land. And it is a contract of which the grantee Henry's successors have taken with notice. Having taken their estate with notice of it, Henry's grantees are bound in equity to perform it. It was on this ground, namely, that the subsequent grantee took with notice of the prior agreement imposed in perpetuity for the benefit of adjoining lands, that the right to equitable relief by specific performance of a contract restricting the use of land in respect to the buildings to be erected on it, and the use to be made of them was established when both the land benefited and that subjected to that burden had passed to grantees. Whitney v. Union Railway, 11 Gray, 359, 71 Am. Dec. 715; Tulk v. Moxhay, 2 Ph. 774. And see 17 Harv. Law Rev. 174. It is on its face a novel proposition that there should be a right to a passageway by way of equitable restriction over lot A in favor of lot B. But in case the owner of lot A has made an agreement in writing, but not under seal (and for that reason not capable of being held to be a grant) that the owner of lot B shall have a right of way over it in perpetuity, there is nothing anomalous in holding that this agreement should be specifically enforced in equity against all taking lot A with notice of that agreement in favor of the owner of the land for the benefit of which the agreement was made. In such a case it may be said, and is said, that there is an equitable restriction on A in favor of B. But that is apt to be misleading. The so-called equitable restriction results from the fact that equity will enforce the agreement against those taking with notice in favor of the then owner of the land to be benefited. Equity does not enforce the agreement because there is an equitable restriction. See Whitney v. Union Railway, Tulk v. Moxhay, and Harvard Law Review, ubi supra. This perhaps was lost sight of in the opinion in Hazen v. Mathews, 184 Mass. 388, 68 N.E. 838. Again, there is nothing anomalous in going into equity to enforce a right to a passageway. An injunction against obstructing it is the usual remedy invoked by the owner of a legal easement to that effect. And many an indenture under seal, as to setbacks and restrictions on the kind of buildings to be erected and the use to be made of them, has been held to create a legal easement, although the rights...
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