Carr v. Riley
| Decision Date | 29 February 1908 |
| Citation | 84 N.E. 426,198 Mass. 70 |
| Parties | CARR et al. v. RILEY et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Everett W. Burdett and Frederick M. Ives, for complainants.
Elder & Whitman and H. Ware Barnum, for defendants.
The first two restrictions contained in the deed from the Riverbank Improvement Company to Whitwell, under whom the defendants claim, are as follows:
The question is whether the use the defendants are making of this house is a violation of either of these restrictions. It is contended by the plaintiffs that the first sentence of the first restriction is 'ungrammatical,' and that as properly 'reconstructed' it means that no building upon the land shall be used except as a dwelling house, and that upon the facts found by the justice who tried the case the defendants are using the building as a hospital and in this way are violating this restriction. It may be said at the outset that upon its face the sentence is not ungrammatical. It violates no rule of syntax. 'Use' is a transitive verb and is employed in a passive form. We may use a building or the building may be used by us. So we may use no buildings other than dwelling houses, or no buildings other than dwelling houses may be used by us. No rule of grammar is violated by either form of expression. And the words taken in either order have a plain, intelligible meaning. Before adopting an interpretation which is not consistent with the natural order of the words and which requires a 'reconstruction' of a perfectly grammatical sentence upon the theory that it is ungrammatical, one hesitates and is inclined to inquire whether after all the trouble is not rather with the interpretation than with the sentence.
It becomes necessary to look into the deed and the circumstances under which it was made. About 1890 the Riverbank Improvement Company acquired title to a large parcel of land and laid it out in building lots. There were many lots, and the deeds given by the company to the respective purchasers contained many restrictions, including those in question. The court found that the restrictions were imposed not merely as a matter between grantor and grantee, but to secure to all persons interested in the lots the benefit of them. It is apparent that the company intended that this territory should be a fine residential section of the city, and framed deeds accordingly. The deed is much more complicated than the ordinary deed of real estate. It contains many restrictions, some respecting the nature of the buildings and some respecting the use of the buildings. It bears upon its face strong evidence that great care was taken in preparing the form. We are not dealing with a document hastily and loosely drawn. All the circumstances, including the form itself, indicate that it was a carefully drawn and well-considered document.
After a description of the land conveyed the deed makes quite minute provisions concerning the proposed streets, and also concerning passageways and party walls. Having provided for these matters the draftsman takes up the next subjects, names the kind of buildings which may be erected and the use which may be made of them. This brings us to the first restriction. The first sentence describes the external appearance of the buildings. With the exceptions of club houses, no building except a dwelling house shall be erected or placed or used upon the land. It shall not be erected or placed there, or if by some chance it gets there it shall not be used for any purpose whatever. Hence no school house of ordinary construction can get there except by right of eminent domain and there cannot be even a church spire to relieve the monotony of the landscape. And there shall be no stable. Only the club house can come in. Not only is the exterior form of the building provided for, but so is the nature of the interior to a certain extent. The substance of these provisions is that no building shall be there, or, if it gets there, shall be used unless in form it is a dwelling house which in design and construction is fitted for only one family. Having provided for the physical nature of the...
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