Day v. McEwen

• Decision Date: 03 May 1978
• Citation: 385 A.2d 790
• Parties: Alan V. DAY and Thelma Page Day v. Currier McEWEN and Katherine C. McEwen.
• Court: Maine Supreme Court

Page 790

385 A.2d 790

Alan V. DAY and Thelma Page Day v. Currier McEWEN and Katherine C. McEwen.

Supreme Judicial Court of Maine.

May 3, 1978.

Clayton N. Howard, Joel F. Bowie (orally), Damariscotta, for plaintiff.

Skelton, Taintor & Abbott, P.A. by Robert Checkoway (orally), Charles H. Abbott, Lewiston, for defendant.

Before McKUSICK, C. J., and POMEROY, WERNICK, ARCHIBALD, GODFREY and NICHOLS, JJ.

McKUSICK, Chief Justice.

Plaintiffs Alan and Thelma Page Day commenced this action in Cumberland County Superior Court seeking injunctive and other relief against Currier and Katherine McEwen. The Defendants counterclaimed for reformation of two deeds, and after hearing, the court made findings of fact and conclusions of law and entered final judgment in all respects against the Plaintiffs and in favor of the Defendants. The Days seasonably prosecuted this appeal from the adverse decision of the court below.

We sustain the appeal in part and remand to the Superior Court.

Plaintiffs and Defendants are property owners in the town of Harpswell. Defendants' land lies on the shore of Merriconeag Sound, and the Days' property is located generally behind the McEwens' to the northwest, on the other side of Route 123. Plaintiffs' dispute with the McEwens concerns their asserted right to an unobstructed view of the Sound and their alleged title and interest in part of that property on the shoreward side of Route 123 in which the McEwens claim title.

I. Right to Unobstructed View

The Plaintiffs sought injunctive and other relief against the McEwens alleging that the "Defendants have planted, caused to be planted or allowed trees, bushes or shrubbery to grow on their said land in such a manner as to obstruct the view of the Plaintiffs of Merriconeag Sound in South Harpswell, Maine." The Days trace their claim of right to an unobstructed view of the Sound to two deeds appearing in their chain of title. Florence P. Ensign, who was Mrs. Day's aunt, once owned all the land involved in this litigation, both that now owned by the Plaintiffs and that now owned by the Defendants. In 1952 the McEwens purchased from Mrs. Ensign two parcels of land on the shoreward side of Route 123. That deed of conveyance contained the following restrictive language:

"Said Grantor excepts and reserves from this conveyance, for herself, her heirs and assigns, as appurtenant to her other land located on the northwesterly side of Route 123, the right to an uninterrupted and unobstructed view from her cottage thereon of Merriconeag Sound, and, as part of the consideration for this conveyance, said Grantees (the McEwens) covenant for themselves their heirs and assigns, as a covenant running with the land, that they will not at any time hereafter construct, erect or maintain any building or addition to building or any other structure, or plant or permit any trees, bushes or shrubbery on their said land, so as to obstruct the view of Merriconeag Sound as hereinbefore reserved from the cottage on said other land of said Grantor (Mrs. Ensign, the Days' predecessor in title) situated on the northwesterly side of said Route 123." ¹ (Emphasis added)

In 1958 the McEwens purchased Mrs. Ensign's remaining property on the shoreward side of Route 123 by a second deed containing a reservation and a covenant identical to those included in the 1952 deed just quoted. ²

In 1960 Mrs. Ensign deeded her remaining property on the other side of Route 123 to Frederick and Jeanette Beckwith, and in 1968 Mrs. Beckwith (then the surviving joint tenant) conveyed that property to the Plaintiffs. Each of those deeds contained language stating that it was "(a)lso conveying . . . the right to an uninterrupted and unobstructed view of Merriconeag Sound from the building on the conveyed premises" as reserved by Florence P. Ensign in the two deeds to the McEwens. Plaintiffs assert that the quoted language in the 1952 and 1958 deeds from Mrs. Ensign to the McEwens created both an "easement appurtenant" and a covenant "running with the land," benefiting the property retained by Mrs. Ensign on the northwesterly side of Route 123. The Plaintiffs further assert that the covenant entered into by the McEwens is now enforceable by them as successors in title to the benefited estate, against the McEwens, who were the original grantees of the burdened estate and promisors of the covenant.

The Superior Court sitting without a jury heard testimony from several witnesses, including the parties, and in addition, after viewing a series of photographs taken over the years, inspected the parties' property on two occasions once in early spring and once at the height of summer's foliage. That evidence amply supports the court's factual determination that certain pin cherry trees, and "possibly some of the alders," within the Plaintiffs' viewing arc and "naturally growing on the land of the Defendants at their present height . . . substantially obstruct and diminish Plaintiffs' view of the Sound from their said Cottage." The court concluded that:

"To the extent that this vegetation has grown since 1952 and 1958 . . . its continued presence on the land would seem to be a violation of the covenants in the deeds, under the construction placed thereon by the Plaintiffs, and entitle them to relief . . . ."

Nonetheless, the court dismissed Plaintiffs' claim for injunctive relief on the ground that the covenant itself was unenforceable as a matter of law. We disagree.

Without attaching any definitive legal label to the rights and duties created by the restrictive language in the 1952 and 1958 Ensign-to-McEwens deeds, we conclude that the parties thereto intended to impose upon the McEwens as grantees an affirmative duty to prevent, and, if necessary, to remove natural growth that thereafter interfered with the grantor's reserved right of view. The covenant assumed by the McEwens in conjunction with the reservation to the grantor, Mrs. Ensign, of the right to an uninterrupted and unobstructed view of Merriconeag Sound expressly stated that the McEwens would not "permit any trees, bushes or shrubbery on their said land, so as to obstruct the view of Merriconeag Sound as hereinbefore reserved . . . ." (Emphasis added) Moreover the present Plaintiffs, as successors in title to the McEwens' grantor, are in a position to insist upon the McEwens' compliance with the deed obligations. The grantor, Mrs. Ensign, expressly excepted and reserved the right of view "for herself, her heirs and assigns, as appurtenant" to her retained estate. By accepting the 1952 and 1958 deeds with that reservation, the McEwens promised "as a covenant running with the land" that they would not thereafter construct any building or structure, or "plant or permit" natural growth so as to obstruct the grantor's previously reserved right of view. The McEwens' covenant not to obstruct the ocean view reserved by Mrs. Ensign for herself and her heirs and assigns was recited as being part of the consideration given by the McEwens for the land they were purchasing from Mrs. Ensign. The original parties thus intended that the benefit of the promise, as incident to the right of view reserved to the grantor's estate, pass to the grantor's successors in title. See Restatement of Property § 542 (1944). The Plaintiffs stand, therefore, in the shoes of the original grantor, Mrs. Ensign, for purposes of enforcing the deed covenant.

On the facts now before us, we squarely confront the question, novel to this court, of the enforceability of that affirmative duty not to "permit" natural growth to interrupt and obstruct the view of the Sound from the Plaintiffs' land. Courts in this country have adopted a flexible approach toward the enforcement of covenants which "touch and concern" the land and impose obligations affirmative in nature upon the owners of the burdened property. A variety of factors are relevant to the determination of enforceability, including the reasonableness of the obligation imposed in terms of its scope and duration, and the clarity with which it is defined. See, e. g., Boston & Maine R.R. v. Construction Machinery Corp., 346 Mass. 513, 194 N.E.2d 395 (1963); Petersen v. Beekmere, Inc., 117 N.J.Super. 155, 283 A.2d 911 (1971); Leh v. Burke, 231 Pa.Super. 98, 331 A.2d 755 (1974). We conclude, upon analysis of those relevant policy considerations in the context of the present case, that the McEwens must comply with the terms of the covenant which they themselves entered into by accepting the 1952 and 1958 deeds.

In this action the Days seek no more than specific enforcement of the deed covenant as against the original promisors. The Ensign-to-McEwens deeds recite that the covenant was entered into by the McEwens "as part of the consideration" for each conveyance. The McEwens as grantees assumed the burden of that promise fully cognizant of its terms and of its purpose to benefit Mrs. Ensign's retained parcel and her successors in title thereto. It takes little imagination to deduce that an unobstructed ocean view was regarded by all the parties as contributing to the value of the retained property. That the McEwens were so aware is confirmed by the Superior Court's finding, supported by the record, that

"(f)or their part the Defendants admit the existence of the covenant and scenic easement, their...