Easterbrook v. Hebrew Ladies' Orphan Society

• Citation: 82 A. 561,85 Conn. 289
• Parties: EASTERBROOK et al. v. HEBREW LADIES' ORPHAN SOCIETY.
• Decision Date: 07 March 1912
• Court: Supreme Court of Connecticut

82 A. 561

85 Conn. 289

EASTERBROOK et al. v. HEBREW LADIES' ORPHAN SOCIETY.

Supreme Court of Errors of Connecticut.

March 7, 1912

Appeal from Superior Court, New Haven County; Edwin B. Gager, Judge.

Action by Nathan Easterbrook, Jr., and others, against the Hebrew Ladies' Orphan Society. From a judgment for defendant plaintiffs appeal. No error.

Wheeler J., dissenting.

The suit was to restrain the defendant from continuing to operate an orphan asylum and home for the aged on certain lots on York Square in New Haven, in alleged violation of the terms of the deed under which the defendant acquired its title and of the conditions and restrictions contained in an earlier deed of trust of which the defendant had notice, and also for damages.

In 1834, four persons, all residents of New York, and the owners in common of a tract of land in New Haven, caused it to be surveyed, and plotted upon a map showing in the central portion a square 365 feet in length and 127 feet in width, surrounded by an avenue or carriageway and fronting upon this way 16 numbered lots. Upon the map were also shown two other ways leading from the one surrounding the square to nearby public streets, one lying easterly and the other westerly of the tract, and in addition certain passageways in the rear or by the side of certain lots. There were eight lots shown which did not face directly on the square. On March 15th of that year they joined in the execution and delivery to four other persons as trustees, and to their successors in said trust to be named from time to time as occasion should require in a manner prescribed, a conveyance of the land thus laid out as a square and for use as avenues or carriage or passage ways. By the terms of the trust, the trustees were required to inclose and improve the square in a manner provided, and to forever maintain and care for it, to pay all taxes, charges, or assessments which may be laid or levied against the land conveyed, to permit the owners of the 16 lots facing the square and their respective tenants and families to have the enjoyment of it as a place of resort and recreation subject to such rules and regulations as the owners of these lots should from time to time prescribe, and to allow certain passageways to be used in connection with certain lots. Provision was made for the reimbursement of the trustees for their expenditure by the owners of the 16 lots and for means of enforcing such reimbursement. The instrument contained a covenant binding upon the grantors, their heirs and assigns, and expressly attached to the lots concerned that there should not be erected upon any one of 12 of the 16 lots, being the lots lying upon the two sides of the square, any building except " a handsome two-story dwelling house with or without wings," and that such house should be located back of an indicated building line. This covenant did not extend to the lots facing the short sides or ends of the square. The defendant's ownership is confined to lots last described, and are not subject to this covenant. Another covenant is that recited in the opinion. Like the one last mentioned, it is expressed to bind the grantors, their heirs and assigns, and it is provided that it attach to and run with the land upon which it is imposed, which in this case is all save 4 of the 24 lots peculiarly situated and with which we are not concerned. The defendant's premises are included in those against which it runs. There are no other restrictive covenants in the instrument, and its remaining provisions do not concern the questions presented by the record.

The plaintiffs are the present trustees. On the north side of the square stand three dwelling houses occupied by their owners for residential purposes. Upon a lot at the west end is an unoccupied dwelling. Two of the lots on the south side have occupied dwelling houses upon them. The other four have been condemned for public school uses, and the New Haven High School and Boardman School stand upon them. In the condemnation damages were assessed to all of the owners of lots facing the square for the loss of their easements. The ways originally laid out around the square and leading therefrom to the nearby streets have become public highways.

The defendant is a corporation. May 10, 1910, it acquired title to three lots lying at the west end of the square, and upon which stands a dwelling house theretofore occupied for residential purposes. It proposes to use and occupy the premises for a home for orphans and aged persons as a purely charitable and benevolent undertaking. It expects to rely largely upon charitable contributions for the support of the institution, although such of its inmates as are able will be required to make such small payments as they reasonably can. There is no intention to conduct it for profit. The defendant has done nothing as yet to carry its plans into execution, and they are not yet fully formulated. It is probable that a superintendent will be employed to manage the institution, and that other assistants and servants will also be employed at customary wages. It is thought that with the institution in full operation there will be from 20 to 30 persons residing therein. Visits to inmates by friends and relatives will be allowed under regulations not yet made. The matter of enlarging the present buildings or of erecting new ones has not been discussed, and there is no present intention as to that matter.

Other facts contained in the finding need not be recited, as they are not pertinent to any question discussed in the opinion.

Eliot Watrous and Thomas M. Steele, for appellants.

John K. Beach and Frederick H. Wiggin, for appellee.

PRENTICE, J. (after stating the facts as above).

It is unquestioned that the plaintiffs have no right to the relief prayed for except as such right arises from a violation of the restrictive covenant running with the land contained in the deed of 1834, by the terms of which the grantors, the predecessors in title of all of the parties to this action, their heirs and assigns, covenant and agree that " neither they nor their heirs or assigns shall or will at any time hereafter erect or permit upon any part of any or either of the said twenty lots any livery stable, slaughterhouse, smith shop, forge, furnace, steam engine, brass foundry, nail, or other iron factory, or any manufactory of gunpowder, glue, varnish, vitriol, ink or turpentine, or for dressing, tanning, or preparing skins, hides, or leather, or any brewery, distillery, public museum, theater, circus, place for the exhibition of animals or any other trade or business, dangerous or offensive to the neighboring inhabitants."

The plaintiffs assert, and the defendant denies, that the latter's proposed use and occupancy of its recently acquired land within the tract covered by said deed is one violative of this covenant. Here is presented an issue fundamental to the case, and one whose determination in favor of the defendant is necessarily fatal to the plaintiffs' right of recovery, regardless of all other considerations. Its determination depends upon the language of the covenant defining the prohibited uses. It is clear that neither the purposes to which the defendant proposes to put its premises in the conduct of a home for orphans and the aged, nor the acts and things proposed to be done thereon in the conduct of the projected institution, are of such a character as to bring its use and occupancy of the property into the category of activities forbidden by special enumeration. It is equally clear that this use and occupation cannot be brought within the purview of the general descriptive language immediately following the specific enumeration as being that of a " trade." Manifestly it cannot be brought under the ban of the covenant unless it is first of all to be regarded as a " business" within the intent and meaning of that word as therein used.

The word " business" is one which is used with widely variant meanings. It is used broadly to signify " that which busies or engages time, attention, or labor as a principal serious concern or interest." Webster's Dictionary. In this sense it embraces everything about which one can be employed. People v. Commissioners, 23 N.Y. 242, 244. It is often used in a much narrower sense to denote " that which occupies the time, attention, and labor of men for the purpose of livelihood or profit." Bouvier's Law Dictionary; Goddard v. Chaffee, 2 Allen (Mass.) 395, 79 Am.Dec. 796; Harris v. State, 50 Ala. 127, 130. In this sense it signifies " a calling for the purpose of livelihood or profit." Anderson's Law Dictionary, 140. It is also used with various other shades of meaning as with especial reference to mercantile or commercial activities, or to commercial or industrial enterprises, or as synonymous with trade. Webster's and Century Dictionaries.

The term thus being one of ambiguous and uncertain meaning, it becomes necessary to determine, as best we may, the meaning in which it was used in this covenant. " The primary rule of interpretation of restrictive covenants is to gather the intention of the parties from the words by reading not simply a single clause of the agreement, but the entire context, and where the meaning is doubtful by considering such surrounding circumstances as they are presumed to have considered when their minds met." Kitching v. Brown, 180 N.Y. 414, 427, 73 N.E. 241, 245 (70 L.R.A. 742). The controlling fact, when discovered, is the expressed intent. Intent unexpressed will be unavailing. In the discovery of the expressed intent there are certain accepted principles of construction to be observed.

One is that the words used are to be taken in their ordinary and popular sense, unless they have...