Hartt v. Rueter

• Decision Date: 01 March 1916
• Citation: 223 Mass. 207
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: DUDLEY N. HARTT & another v. HENRY A. RUETER & others, trustees.

223 Mass. 207

DUDLEY N. HARTT & another v. HENRY A. RUETER & others, trustees.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1916

October 18, 19, 1915.

Present: RUGG, C.

J. LORING, CROSBY PIERCE, & CARROLL, JJ.

Equitable Restrictions. Deed. Land Court. Words "Porte-cochere."

Where equitable restrictions were imposed upon thirteen lots of land adjoining a certain private street according to a general plan for the development of the entire tract of land, the fact, that the restrictions imposed upon three of the lots situated at the end of the private street, which had no outlet at that end, differed from the uniform restrictions imposed on the other ten lots in not requiring like those restrictions that dwelling houses should be set back twenty-five feet from the private street but permitting houses to be built up to the line of the way on those three lots, does not affect the character of the restrictions on the other ten lots or render such restrictions less binding.

A right to the enforcement of an equitable restriction for the benefit of a lot of land is appurtenant to the land and passes under a deed that conveys the land "together with . . . all the rights, privileges and appurtenances thereto belonging," without any specific mention of the restriction.

Where an equitable restriction imposed upon lots adjoining a private street called an avenue, required "that no building shall be placed nearer to said principal avenue than twenty-five feet," and a judge of the Land Court had found as a fact "that the porte-cochere of the house on the respondent's premises extends over, or into, the restricted area, it being at its northeast corner only seventeen and sixteen one hundredths feet from the westerly line of the principal avenue," and where there was nothing in the record except the word "porte-cochere" to indicate the nature of the structure and nothing to show when it was built, it was held that, in the absence of a finding that the structure was built and maintained in violation of the restriction, it could not be ruled as matter of law that its existence constituted such a violation.

Although in a case in the Land Court, where a trial by jury is not claimed, the findings of a judge of that court upon all questions of fact are final, yet, where the facts on which a finding was made are not in dispute and all the evidence is before this court, the question of law is presented whether the evidence justified the finding of the judge.

It cannot be found that the right to enforce an equitable restriction has been abandoned or relinquished, where no adverse use is established, and where there is no evidence of any act of the owner of the land to which the right to enforce the restriction is appurtenant unequivocally manifesting either a present intention to relinquish the restriction or a purpose inconsistent with its further existence.

D. C. Delano, for the respondents. C. L. Barlow, for the petitioners.

CROSBY, J. These are two petitions brought in the Land Court to register and confirm the titles to certain parcels of land owned by the petitioners respectively, and the question presented is whether such lands are subject to certain restrictions, recited in deeds of record given by their predecessors in title, which restrictions created rights that will be maintained in equity in favor of the respondents.

In 1849 John H. Wilkins owned a tract of land in Roxbury, (ILLUSTRATION) comprising the land of the petitioners and of the respondents, except a portion of the Gardiner property which is not affected by any question involved, and caused a plan to be made and recorded, dividing the tract into thirteen lots. This plan is entitled: "Plan of Building Lots in Roxbury Belonging to John H. Wilkins, Chas. Whitney, Surveyor, July 26, 1849." A reduced copy of this plan is printed above. By deed dated August 11, 1849, Wilkins conveyed to Elisha D. Winslow, under whom the respondents by mesne conveyances hold title, lots 1, 2 and 3 shown on the plan. This deed contains the following restrictions: "It is hereby understood and agreed that no buildings other than dwelling houses and the usual structures appurtenant thereto shall be erected on the premises; that no business shall be established thereon of a nature to be unhealthy or offensive in the neighborhood; that no building shall be placed nearer to said principal avenue than twenty-five feet, and the said Winslow and his assigns shall keep in repair one-half of said principal avenue so far as it joins the above granted premises, these same restrictions applying to all the lots on the Easterly side of said Avenue and now owned by Wilkins except lot No. 8."

When this deed was given, Wilkins was the owner of the remaining ten lots. By deed dated September 25, 1849, Wilkins conveyed to Joseph Nickerson lots 8 to 13, both inclusive, the title to which lots by mesne conveyances has become vested in the petitioners; and by deed dated September 27, 1849, Wilkins conveyed to Nickerson lots 4 and 5. Both of these deeds contain the same restrictions as those in the deed to Winslow, except that the set back on lot 8 applied only to a stable or outhouse.

By deed dated March 24, 1853, Nickerson conveyed lot 4 to Winslow subject to the same restrictions. The lots 1 to 4, both inclusive, are now owned by the respondents, except a strip on the westerly side since taken by the city of Boston for a public way. The Whitney plan shows a way running northerly from Perkins Street across the tract to a point between lots 6 and 8, with no outlet at its northerly end. This way is referred to in the original deed from Wilkins to Winslow as an "avenue," lots 1 to 7, both inclusive, being on the westerly side, and lots 8 to 13, both inclusive, being on the easterly side of the avenue. The lots on the easterly side of the avenue comprise a portion of the lands of both petitioners.

By deeds dated August 11, 1849, Wilkins conveyed lot 6 to Phineas B. Smith, and lot 7 to Ira Allen, subject to the same restrictions except that there was no set back on lot 7, and the deed of lot 6 prohibited the erection of a building thereon which should project over the westerly line of the avenue; these lots (6 and 7) were acquired by Nickerson by deeds dated August 12, 1850, and

March 23, 1859, so that upon the latter date Nickerson owned all the lots shown on the plan except lots 1 to 4 inclusive, owned by Winslow.

By deed dated August 29, 1859, Wilkins released to Nickerson all his right, title and interest in lots 5 to 13, both inclusive, using the following language: "Meaning and intending hereby to release and discharge any conditions, restrictions or limitations annexed to said premises by my said deeds." On the same date Wilkins executed a release in the same form to Winslow of the restrictions on lots 1 to 4, both inclusive. On August 30, 1859, Nickerson released to Winslow the restrictions on lot 4, and on May 28, 1860, Smith released to Nickerson the restrictions on lot 6.

By deed dated September...