Donahoe v. Turner

• Citation: 90 N.E. 549,204 Mass. 274
• Parties: DONAHOE et al. v. TURNER.
• Decision Date: 07 January 1910
• Court: United States State Supreme Judicial Court of Massachusetts

204 Mass. 274

90 N.E. 549

DONAHOE et al. v. TURNER.

Supreme Judicial Court of Massachusetts, Suffolk.

January 7, 1910

COUNSEL

Roger Clapp, for appellant.

John F Cronin and Chas. H. Cronin, for appellee.

OPINION

MORTON J.

This is a bill in equity to restrain the defendant from erecting on land belonging to him in the Dorchester district in Boston a building in violation of certain building restrictions to which it is alleged such land is subject in favor of the plaintiffs. There was a hearing upon the merits, the facts being agreed to, and a decree was entered dismissing the bill as to both plaintiffs, and they both appealed. Subsequently the plaintiff Donahoe withdrew her appeal. The case is before us now upon the appeal of the plaintiff Feeley alone, who will be spoken of as the plaintiff.

The lots belonging to the plaintiff and defendant respectively were formerly parts of a large tract owned by one Mary E Rhodes, and the contention of the plaintiff is that she established a general building scheme applicable to the entire tract. The presiding justice found against the plaintiff on the issue thus presented; his finding being that 'there was no general scheme of restriction applicable to the large tract once held by Mary E. Rhodes.' The plaintiff contends that the finding thus made is wrong, and that is the sole question before us.

It is to be observed that although the case was heard upon an 'agreed statement of facts' it stands differently in respect to the power of the court to draw inferences from what it would if instead of being a suit in equity it were an action at law. The facts, though agreed, are to be treated as evidence, with power on the part of the court to draw such inferences from them as may be warranted. 'The statements of counsel in explanation and elucidation' of the 'agreed statement of facts,' though, no doubt, helpful to the court, cannot be regarded as constituting a part of the evidence on which the case was heard. The case must be dealt with on the footing that all of the evidence that was before the court is contained in the agreed statement of facts.

We do not see how any other conclusion could have been reached than that arrived at by the presiding justice. If we assume in the plaintiff's favor that the conveyance of the two corner lots on North Monroe Terrace without restrictions would not have been inconsistent with the establishment of a general...