Bouley v. City of Nashua

• Decision Date: 30 November 1964
• Citation: 106 N.H. 74,205 A.2d 34
• Parties: John L. BOULEY et al. v. CITY OF NASHUA et al.
• Court: New Hampshire Supreme Court

Page 34

205 A.2d 34

106 N.H. 74

John L. BOULEY et al. v. CITY OF NASHUA et al.

Supreme Court of New Hampshire.

Argued Nov. 4, 1964.

Decided Nov. 30, 1964.

Clancy & O'Neill, Nashua (Frank B. Clancy, Nashua, orally), for plaintiffs.

Hamblett, Kerrigan & Hamblett, Nashua (Joseph M. Kerrigan, Nashua, orally), for defendant Bouchard.

Leo R. Lesieur, Nashua, for City of Nashua, furnished no brief.

DUNCAN, Justice.

This is a bill in equity by husband and wife as owners of a tract of land on Sargent Avenue in Nashua, seeking to enjoin the defendant Bouchard as owner of an adjoining tract from erecting 'any building other than one dwelling house' upon the adjoining tract owned by him. The defendant city of Nashua is the common predecessor in title of the plaintiffs and the defendant. All questions presented were transferred without ruling by the Presiding Justice (Leahy, C. J.).

Sargent Avenue in Nashua runs generally west to east between Amherst Street on the west and Manchester Street on the east, a distance of over 2,000 feet. It borders the northerly side of a large tract of land owned by the city known as 'North Common,' which is used for a variety of public school and recreational purposes.

Some ninety years ago the city, as owner of the land north of Sargent Avenue, divided it into nineteen lots of land, most of which had a uniform frontage of 100 feet on Sargent Avenue and a depth of 120 feet extending northerly. A tract of land now owned by the defendant, at the westerly end of the street, bordering Amherst Street, was originally designated Lot No. 1; and the adjoining lot now owned by the plaintiffs, as Lot No. 2. Lot No. 1 had a frontage of 100 feet on Sargent Avenue, a depth of 120 feet, and because of the angle at which Sargent Avenue intersects Amherst Street, a rear or northerly line of 159 1/2 feet. Owing to later abandonment of a proposed street along the north boundary, the lot was enlarged by the addition of a strip approximately 16 feet wide on the north side so that the defendant's entire lot is no now 136 feet deep, with a frontage on Amherst Street of 151 feet. The strip at the northerly side of the lot was conveyed by the city without restrictions.

The plaintiffs acquired title to Lot No. 2 in August 1956 subject to 'the restriction that the grantees, their heirs and assigns, shall not erect or permit to be erected any structure on said premises within twenty-five (25) feet of the established line of Sargent's Avenue.' Their property consists of a substantial dwelling house and barn erected sometime before 1912.

The defendant and her late husband as joint tenants had previously acquired title to Lot No. 1 in April 1954. The conveyance to them was likewise subject to a 'restriction' that 'no building or structure of any kind' should be erected within twenty-five feet of Sargent Avenue. Lot No. 1 is a vacant lot, upon which for more than forty years there have been billboards facing toward Amherst Street along the northerly boundary of the lot. The lot is presently screened from the plaintiffs' land by a row of trees and bushes. The defendant proposes to sell the premises for filling station use under a variance granted by the Nashua zoning board. See Bouley v. Nashua (decided this day), N.H., 205 A.2d 38.

The restrictions which the plaintiffs seek to enforce were originally contained in a deed of three lots on Sargent Avenue given under date of July 28, 1873 by the city of Nashua to a predecessor in title of the defendant. This deed was upon condition, among other things, 'that no more than one dwelling house shall be built on each lot,' and provided that 'in case of violation of any of the foregoing conditions on the part of the grantee or his heirs or assigns at any time hereafter this conveyance shall become void [and] * * * forfeited * * * to the City of Nashua to whom in such case the same shall revert.'

The evidence disclosed that commencing in 1871 the city of Nashua, as owner of the land north of Sargent Avenue, undertook to divide it into 19 lots fronting on the Avenue, across from the North Common. The first conveyance was of Lot No. 18 at the easterly end of the Avenue, separated from Manchester Street by Lot No. 19. The deed of Lot No. 18 dated October 18, 1871 referred to a 'plan of said Lots drawn and made by H. F. Richmond in August 1871,' and recited that 'reference may be had to said plan for a more definite description of said premises.' The lot was conveyed upon condition that a dwelling house not less than two stories high and costing not less than $2,500 should be erected within three years, that such dwelling should be set back not less than 25 feet from the front line, and that 'there shall not be built on said lot but one dwelling house, and in case of violation of any of the foregoing conditions, the premises shall revert to the City of Nashua.'

The plan referred to was a plan on file in the office of the city clerk, described in a later deed in 1956 as 'No. 68 in a book of plans of streets and sewers on file in the office of the City Clerk.'

The next conveyances by the city, after that of Lot No. 18, were of lots Nos. 5, 7, 9, 13 and 15, all under date of October 14, 1872. The four deeds conveying these lots described them as 'North Common land' and as numbered lots 'on the plan', without identifying the plan. These deeds contained conditions of the sort contained in the deed to Lot No. 18, except that the restriction against erection of more than one dwelling house was as follows: 'and no more or other than one dwelling house shall be erected or maintained on each of said lots.' (Emphasis supplied).

The next conveyance by the city was the deed to the defendant's predecessor, Otis, under date of July 28, 1873. This deed conveyed Lots 1, 3 and 17, upon similar conditions with respect to erection of a dwelling, and a condition that 'no more than one dwelling house shall be built on each lot.'

Lot No. 8 was conveyed by the city in 1875, and no other lots were thereafter sold until 1887, when Lots 2, 4, 10, 11, 12, 16 and 19 were sold. The seven deeds by which lots were conveyed in 1875 and 1887 imposed restrictions phrased in substantially the language used in the four deeds of October 14, 1872, including the language: 'no more or other than one dwelling house shall be crected.'

The last two of the 19 lots, consisting of Lots No. 6 and 14, were conveyed by the city in July 1937, when conditions uniform with those of the 1872 deeds were again imposed.

In the meantime by deed dated April 7, 1926 to a predecessor in title of the defendant the city released Lot No. 1 from all restrictions except that of the 25-foot set back. On December 24, 1926 by deed to a predecessor of the plaintiffs the restrictions upon Lot No. 2 were similarly released. Similar releases as to four other lots were granted by the city in 1941 and 1962.

These and other facts established by testimony and agreement present the issue of whether the plaintiffs are entitled in equity to enforce the condition contained in the 1873 deed from the...