DeBlois v. Crosley Bldg. Corp. of Maine, Inc.

• Decision Date: 25 July 1977
• Docket Number: No. 7733,7733
• Parties: Leon DeBLOIS et al. v. CROSLEY BUILDING CORPORATION OF MAINE, INC.
• Court: New Hampshire Supreme Court

Page 143

376 A.2d 143

117 N.H. 626

Leon DeBLOIS et al. v. CROSLEY BUILDING CORPORATION OF MAINE, INC.

No. 7733.

Supreme Court of New Hampshire.

July 25, 1977.

Eaton, Moody, Solms & Carroll and Richard E. Mills, Manchester, for plaintiffs.

Lee A. Strimbeck, Derry, by brief and orally for defendant.

GRIMES, Justice.

The questions raised in this petition in equity are whether certain restrictions prohibiting the operation of a restaurant on land conveyed by plaintiffs are binding on defendant and whether plaintiffs' right to use certain parking areas were lost by a failure to annually pay toward the cost of maintenance.

By deed dated 1966, plaintiffs who owned and operated a restaurant in Allenstown, conveyed adjacent property to a realty trust for the building of a shopping plaza. The deed contained the following restrictions:

b) That no business shall be conducted or maintained on the land to be conveyed for the sale of restaurant service for food and refreshments, said restriction, however, shall not apply to so-called snack bar service or soda fountain service customarily located in supermarkets, drug stores or retail discount department stores.

c) An easement in favor of the grantors to use and enjoy the common parking areas from time to time established by grantees in the land to be conveyed, without cost to the grantors or their business invitees, provided, however, that the grantors or their successors in title shall pay to the grantees or their successors in title an annual contribution towards maintenance cost of the parking facilities of Seventy-Five Dollars ($75) per calendar year. This restriction shall cease and terminate at such time as the grantors do not maintain a retail business in the 10,000 foot tract.

Pembroke Realty Trust conveyed the property to Westminister Shopping Centers, Inc., in June 1971 and it later conveyed the property to defendant in March 1973. Both deeds contained the following language, "The foregoing premises are conveyed subject to and with the benefit of the easements, conditions, and covenants as set forth in a deed from Leon DeBlois et ux to the grantors dated April 20, 1966 and recorded Merrimack County Records Book 985, Page 171."

It seems to be undisputed that the $75 yearly payment was made up until 1971 when the property was acquired by Westminister.

There was no request for the payment until Mr. McDonald, defendant's president, wrote plaintiffs stating that he could find no record of the $75 payment. After a series of correspondence plaintiffs tendered $75 to defendant which was returned. The defendant filed an affidavit in the registry of deeds stating that easement "c" was null and void for failure to pay the $75 fee. Plaintiffs then filed this petition seeking to clear this cloud upon their title and to restrain defendant from discontinuing maintenance of the parking lot. Defendant by answer sought affirmative relief by asking that restriction "b" be declared void as against public policy.

The matter was heard before a Master (Earl J. Dearborn, Esq.) who found in favor of plaintiffs and his report was approved by Keller, C. J., who made an order in accordance with it and transferred defendant's exceptions.

Defendant urges us to declare that the imposition by deed of restrictions on the kind of business that can be conducted on the land conveyed to be void as against public...