Jackson v. Stevenson

Decision Date23 June 1892
Citation156 Mass. 496,31 N.E. 691
PartiesJACKSON et al. v. STEVENSON.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
COUNSEL

Chas Almy, for complainants.

Hayes & Williams, for defendant.

OPINION

BARKER J.

In the year 1853 the city of Boston owned a parcel of land known as the "Arsenal Estate," in the vicinity of the southerly end of the common. The lot was triangular, but truncated at the northerly end towards the common, and contained an area of about 14,000 square feet, bounded on the west by Pleasant street, now known as "Park Square," and on the other side by lands of private owners. The westerly line was about 232 feet in length, and the greatest depth, perpendicular to this line, was about 100 feet, while at the northerly end the depth was about 24 feet. At this time the estates surrounding the common were chiefly used for the more expensive residences. The city caused the land to be divided into eight lots, and sold. The most northerly and southerly lots, numbered, respectively, 1 and 8, were each about 44 feet wide, and each of the other lots 24 feet. The plaintiffs are the owners of lot No. 8, while the defendant owns the lots numbered 4 and 5. The other lots are owned by different persons, all deriving title through separate deeds from the city. In order to provide a general building scheme, and to effect a uniform plan, certain restrictive clauses were inserted by the city in its deeds intended for the benefit of the lots and of the neighborhood. The first of these clauses related to partition walls, the second to the front lines of the buildings, and the third required the buildings to be of a width equal to the width of the front of the lot. Each lot was divided, by lines parallel with Pleasant street, into front and rear portions. The front portion of lot No. 1 was 18 feet deep, of lot No. 2, 32 feet and of the other lots 40 feet. The fourth restrictive clause provided that "no dwelling house or other building except the necessary outbuildings, shall be erected or placed on the rear of the said lot." The fifth clause was as follows: "No building which may be erected on the said lot shall be less than three stories high, exclusive of the basement and attic, nor have exterior walls of any other material than brick, stone, or iron, nor be used or occupied for any other purpose or in any other way than as a dwelling house, apothecary's shop, dry goods store, or grocery store, during the term of twenty years from August 25, 1853." The city conveyed the lots No. 4 and 5 in 1856, and the plaintiffs' lot No. 8 in 1858. All the lots were conveyed by the city before the year 1864, and dwelling houses of substantially uniform design were built which now remain upon lots Nos. 3, 4, 5, 6, 7, and 8. The main part of each house is 40 feet deep, four stories high, exclusive of basement and attic, and covers the width of its lot, extending back to the line separating the front and rear portions. On the northerly side of the rear of lot No. 7 is a two-story ell, about 11 feet wide and 15 feet deep, and between 17 and 18 feet in height, the lower story of brick, and the upper of metal, with flat roof. In the rear of this ell, and covering the whole width of the lot, is also a building 7 feet high, of brick, connecting with a store-house on Carver street, which is the next street easterly. The rear building last mentioned was erected in 1886. The upper story of the ell was added in 1878, and the original ell existed before 1877. Since 1886 the structures on the rear of lot No. 7 have been used in a wholesale and retail apothecary business carried on in the buildings on this lot, and in connecting buildings on Carver street. On the northerly side of lot No. 6 is an ell or extension 32 feet high, 13 feet wide, and 141/2 feet deep, with a nearly flat roof, used as part of the main building. This extension has been in its present shape since 1878, and for some years before that date it was one story lower. On the rear of lot No. 3 is a brick ell 91/2 feet wide, and 39 feet high, extending to the end of the lot. This ell has existed for many years, and has always been used as part of the main building. Upon the northerly side of the rear of each of the defendant's lots have existed for many years structures about 11 feet wide, extending from the main buildings to the easterly side of the lots, with roofs sloping to the south, the north walls being about 10 feet high. These extensions have been used for kitchens, laundries, and water- closets. On the top of the north wall of the ell, on lot No. 5, there has been for many years a trellis of upright posts and cross bars, partly covered with live grapevine. No objection had been made by the owners of the plaintiffs' estate to any structure erected on any of the lots until this case arose, in 1891. The master finds that since August 25, 1873, there has been a considerable change in the character of the neighborhood, the houses being no longer used as dwellings exclusively, but devoted to a considerable extent to business purposes, and that the neighborhood is now, to all intents and purposes, a business or mercantile one. The defendant, owning property on Carver street abutting on the rear of lot No. 4, and intending to erect a market on Carver street proposed to build, over the entire rear portion of lot No. 4, a brick structure with a flat roof and raised skylight, for use as a part of and a connection between the ground floor of the building on lot No. 4 and his Carver street property, designed as a store or market, its exact use depending upon future tenants. The plaintiffs, upon ascertaining this, gave notice that they should insist on a compliance with the restrictions; and, this notice being disregarded, brought their bill, alleging that the defendant is about to erect on lot No. 4 a building which is not a necessary outbuilding, and asking that he may be perpetually enjoined from placing on the rear of lots No. 4 or No. 5 any building except necessary...

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