Chase v. Walker

• Decision Date: 08 January 1897
• Parties: CHASE v. WALKER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

167 Mass. 293

45 N.E. 916

CHASE

v.WALKER et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 8, 1897.

Report from supreme judicial court, Suffolk county; John Lathrop, Judge.

Petition under St.1889, c. 442, by Nathaniel E. Chase against Mary L. Walker and others, to determine the validity and define the nature and extent of the following covenant: “Know all men by these presents: That I, Cornelius Coolidge, of Boston, in the county of Suffolk, and commonwealth of Massachusetts, gentleman, in consideration of one hundred and fifty-six dollars fifty cents to me paid by Titus Wells, gentleman, Warren Dutton, Esquire, both of said Boston, Margaret Cooper, widow, and Mark Newman, of Andover, in the county of Essex, Esquire, and Thomas W. Phillips, of said Boston, Esquire, the receipt of which sum is hereby acknowledged, do hereby for myself, my heirs and assigns, covenant and agree with the said Wells, Dutton, Cooper, Newman, and Phillips severally, and with their heirs and assigns, that neither I nor my heirs or assigns, or either or any of them, shall or will ever carry or cause to be carried, any higher than the same now is, the brick wall which separates my estate on Chestnut street, in said Boston, from the three estates on Walnut street belonging to said Wells, Dutton, Newman, and Phillips; and incase the wall now there should be destroyed or injured or taken down, that no wall, or anything else, to obstruct in the least degree the light or air, shall ever be there erected higher than ten feet from the surface of the yards of said Walnut street estates, excepting the attic [lattice?] work as it now stands. And I do further, for myself, my heirs and assigns, covenant with said Dutton, Cooper, Newman, and Phillips, their heirs and assigns, that neither I, nor they, nor either of them shall or will at any time cause the vaults upon their estates to be removed from their present situation. Witness my hand and seal, this sixth day of March, A.D. eighteen hundred twenty-six. Cornelius Coolidge. [Seal].” The petitioner is the present owner, through mesne conveyances, of the property owned by the covenantor, and the defendants of that owned by the covenantees.

Darwin E. Ware and Richard D. Ware, for petitioner.

John C. Gray, Francis V. Balch, and Felix Rackemann, for defendants.

ALLEN, J.

It is quite plain that the literal construction which is contended for by the petitioner could not have been in the minds of the parties to the covenant. Under that construction, the covenantor might at once have erected a...