Flynn v. Caplan

• Decision Date: 08 January 1920
• Citation: 234 Mass. 516,126 N.E. 776
• Parties: FLYNN v. CAPLAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

234 Mass. 516

126 N.E. 776

FLYNN

v.CAPLAN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 8, 1920.

Appeal from Superior Court, Suffolk County; John F. Brown, Judge.

Suit by Cornelius G. Flynn against Abraham Caplan and another. From interlocutory decree confirming the master's report, and final decree dismissing the bill, plaintiff appeals. Bill directed to be dismissed without prejudice to plaintiff's right to sue at law.Francis Burke, Thomas J. Kenny, and Joseph P. Bell, all of Boston, for plaintiff.

Jacob Isaacs and John F. Barry, both of Boston, for defendants.

CROSBY, J.

This is a suit in equity brought to enforce a building restriction on land owned by the defendant. The deed in which the restrictions were originally created was given by Francis V. Balch, trustee, and another to the city of Boston and was dated March 30, 1889; after reciting the restrictions it is provided that--

‘The restrictions above set forth shall continue in force so long as such roadway and walk shall be maintained by said city of Boston. * * *’

If we assume without deciding that the restrictions imposed by the original grantors were not merely for the benefit of the city of Boston, but also attached to the remaining land of the grantors, the fundamental question is: Are they terminated by virtue of the provisions of St. 1887, c. 418, now R. L. c. 134, § 20? If the statute applies it is plain that they are no longer in existence, as more than 30 years have elapsed since the date of the deed by which they were created.

[1] The words of the statute are these:

‘Sec. 20. Conditions or restrictions, unlimited as to time, by which the title or use of real property is affected shall be limited to the term of thirty years after the date of the deed or other instrument or the date of the probate of the will creating them, except in cases of gifts or devises for public, charitable or religious purposes. The provisions of this section shall not apply to conditions or restrictions existing on the sixteenth day of July in the year eighteen hundred and eighty-seven or to those contained in a deed, gift or grant of the commonwealth.’

The evident purpose of the statute was to terminate restrictions that have been in force 30 years, unless it appeared in the instrument creating them that they were to run for a definite term of years, or until the happening of an event certain to occur. The word ‘unlimited’ means without confines, unrestricted, boundless. The city of Boston may maintain the roadway and walk forever or for a lesser period, in accordance with the determination of the city. The restriction may therefore be unlimited as to time because the city may never cease to maintain the roadway and walk; and in any circumstance it is terminable upon the happening of an event not certain to come to pass and hence it is not protected against termination at the expiration of 30 years prescribed by the statute. This conclusion follows by analogy the rule of the statute of frauds. If an oral contract...