Beals v. Case

• Decision Date: 11 November 1884
• Citation: 138 Mass. 138
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: William Beals v. James B. Case & wife

138 Mass. 138

William Beals v. James B. Case & wife

Supreme Judicial Court of Massachusetts

November 11, 1884

Argued March 20, 1884.

Argued March 21, 1884.

Suffolk.

Bill dismissed.

E. W Hutchins & H. Wheeler, for the plaintiff. Under the decision of this court in Linzee v. Mixer, 101 Mass 512, the plaintiff has the right to maintain this bill unless he is prevented by the fact that the Commonwealth in a few instances, in a different part of the same street, made a change inits form of deed, or unless the fact that the catalogue used at the sales by auction contained the note relied on by the defendants, is material.

The fact that a few stables were permitted in one small part of such an extensive territory as the Back Bay lands, is no reason for refusing to enforce a restriction against their use in other portions. German v. Chapman, 7 Ch. D. 271. Mitchell v. Steward, L. R. 1 Eq. 541. The deeds of the lots on which stables are permitted were delivered before the lots now held by the parties to this suit were sold. They cannot affect the interpretation of the language of the subsequent deeds, or operate as a waiver of restrictions therein contained.

The note in the catalogue, not being contained in the deeds to the parties to this suit, cannot affect the restrictions which they contain. The grantees received deeds in the precise form set forth in the catalogue. It does not appear that they ever understood that they were to receive deeds in any other form, or that they bought relying upon the note in the catalogue. Andrew v. Spurr, 8 Allen 412. Lee v. Kirby, 104 Mass. 420. McCluskey v. Providence Washington Ins. Co. 126 Mass. 306. Hunt v. Rousmaniere, 1 Pet. 1. United States Bank v. Daniel, 12 Pet. 32. McElderry v. Shipley, 2 Md. 25. Wilson v. Watts, 9 Md. 356. Lloyd v. London, Chatham & Dover Railway, 2 DeG., J. & S. 568. Powell v. Smith, L. R. 14 Eq. 85. Midland Great Western Railway v. Johnson, 6 H. L. Cas. 798. Croome v. Lediard, 2 Myl. & K. 251. Bird v. Lake, 1 H. & M. 111. 1 Story Eq. Jur. §§ 137, 138.

If the defendants have any equitable defence against the Commonwealth, they have none against the plaintiff, who had no notice of the note in the catalogue. By accepting deeds prohibiting the use of a private stable, and by placing them on record, the defendants represented to all purchasers of adjoining lots that their lot was affected by an easement, the benefit of which was attached to such lots and passed to the purchasers.

M. Williams & C. A. Williams, for the defendants.

Devens & Colburn, JJ., absent. Morton, C. J.

OPINION

Morton, C. J.

The plaintiff is the owner of a lot of land with a dwelling-house thereon, on Newbury Street in Boston, between Clarendon Street and Dartmouth Street; the defendants are the owners of a lot with a dwelling-house thereon on Commonwealth Avenue. The two lots adjoin in the rear, the line of each being the centre line of a passageway, sixteen feet wide, over which each has a right of way. Both parties derive their titles from the Commonwealth: the plaintiff, under a deed to one Morse, dated in July, 1869; and the defendants, under deeds to one Reed and one Daggett, dated respectively in March, 1867, and in May, 1871. The deeds from the Commonwealth under which the defendants derive their title contain the stipulation "that any building erected on the premises shall be at least three stories high for the main part thereof, and shall not in any event be used as a stable, or for any mechanical, mercantile, or manufacturing purposes."

The deed under which the plaintiff claims contains the same stipulation, except that the word "mercantile" is left out. All the deeds contain the provision that the "said Commonwealth reserves the right to enter upon the premises, by its agent and at the expense of the party at fault, to remove or alter, in conformity with the above stipulations, any building or portion thereof which may be erected on the premises by the said grantees, or their representatives or assigns, in a manner or to a use contrary to the above stipulations."

The plaintiff by this bill in equity seeks to restrain the defendants from using as a private stable a building erected by them on the rear part of their lot.

The plaintiff's deed contains no provisions which give him the right to control the use of the defendants' land. And there are no express provisions in the defendants' deeds which subject their land to a servitude or easement in favor of the plaintiff's land. The plaintiff can maintain his suit only upon the ground that the restrictions in the defendants' deeds create a servitude or right in the nature of an easement in their land, which, by implication, is annexed and made appurtenant to the plaintiff's land.

It often happens that owners of land adopt a general scheme or plan for its improvement, dividing it into house lots, and insert in the deeds of the several lots uniform restrictions as to the purposes for which the land may be used, such restrictions upon each being intended for the benefit of the other lots. In such cases it is held that the owner of each lot has, as appurtenant to his lot, a right in the nature of an easement upon the other lots, which he may enforce in equity if the owners of the other lots violate the restrictions. Whitney v. Union Railway, 11 Gray 359. Parker v. Nightingale, 6 Allen 341. Linzee v. Mixer, 101 Mass. 512. Peck v. Conway, 119 Mass. 546. Tobey v. Moore, 130 Mass. 448.

The rule is stated in Whitney v. Union Railway to be, that, when "it appears by a fair interpretation of the words of a grant that it was the intent of the parties to create or reserve a right, in the nature of a servitude or easement, in the property granted, for the benefit of other land owned by the grantor, and originally forming with the land conveyed one parcel, such right will...