Jenney v. Hynes

• Decision Date: 14 February 1934
• Citation: Jenney v. Hynes, 285 Mass. 332, 189 N.E. 102 (Mass. 1934)
• Parties: JENNEY et al. v. HYNES et al.
• Court: Supreme Judicial Court of Massachusetts

285 Mass. 332

189 N.E. 102

JENNEY et al.

v.HYNES et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 14, 1934.

Report from Superior Court, Suffolk County; Weed, Judge.

Petition by Bernard Jenney and others for an adjudication that Doris Hynes and others were guilty of contempt in violating a decree enjoining them from erecting any building other than dwelling houses on certain land.Interlocutory decree confirming a master's report, decree dismissing the petition, and case reported by the superior court.

Case remanded to the superior court, with directions.

F. L. Norton, of Boston, for plaintiffs.

H. Bergson, of Boston, for defendants.

LUMMUS, Justice.

By the final decree entered after rescript in the case of Jenney v. Hynes, 282 Mass. 182, 184 N. E. 444, the defendants were enjoined ‘from erecting, placing or using upon their said land or any portion thereof any building other than dwelling houses (which word shall include clubhouses) with the usual outbuildings appurtenant thereto or in design or construction fitted for occupancy by more than one family, and from using or permitting the use of any building erected on said land for any manufacturing, mercantile or mechanical purposes or as an apartment house, family hotel or flat.’

That final decree was based on a building restriction by which the land of the defendant Hynes was bound.The violation of the restriction was the erection by the Texas Company, which used the land for a gasoline filling station as the lessee of the defendant Hynes, of a structure sixteen feet long, four feet wide, and five feet nine inches high, set upon a cement platform raised six or eight inches above the ground.The building had three compartments containing an electrically operated air compressor for furnishing power for pneumatic hoists, and five tanks with hand pumps for delivering oil, meter boards and switches for the electrical equipment.It was held that the structure was a building within the prohibition of the restriction, and that it was being used for mercantile and mechanical purposes in violation of the restriction.Under the restriction, the use of the land for manufacturing, mercantile or mechanical purposes is not prohibited, so long as no building exists whech is used for such purposes or is of a prohibited class.

The building which occasioned the suit no longer exists.The Texas Company no longer occupies the land, but the defendant Hynes now occupies the land as a gasoline filling station.She has built a new structure consisting of a wooden box or cabinet measuring three feet in length and height and eighteen inches in width, mounted on wooden legs eighteen inches high, standing on the ground without any foundation or fastening.In it are kept books, papers, tools, and keys.She has built also a pit with concrete walls, twelve or fifteen feet long, three feet wide, and six or seven feet deep, to which access is obtained by a flight of concrete steps.At the end of the pit opposite the stairs is a door opening into a concrete chamber about seven feet by five feet in size, and about five and one half feet high, with a concrete top.No part of the chamber rises above the ground.The chamber is lighted by electricity, and contains substantially the same apparatus as did the building which was held to violate the restriction.Any connection between the chamber and the air hose, gas pumps or other apparatus on the land, is underground.The operation of a gasoline filling station requires that the apparatus contained in the chamber be protected from the weather.

On a petition filed by the plaintiffs to have the defendant Hynes adjudged in contempt, a master found substantiallythe foregoing facts, and found that neither the chamber nor the box hereinbefore described is a building within the meaning of that word as it was used in the restrictions and in the decree.To that conclusion the plaintiffs alleged an exception, which was overruled,...