Jenney v. Hynes

• Decision Date: 21 February 1933
• Citation: 184 N.E. 444,282 Mass. 182
• Parties: JENNEY et al. v. HYNES et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

282 Mass. 182

184 N.E. 444

JENNEY et al.

v.HYNES et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 21, 1933.

Appeal from Superior Court, Suffolk County; Dillon, Judge.

Suit by Bernard Jenney and another against Doris Hynes and another. From decree for plaintiffs, the defendants appeal.

Modified and affirmed.

H. Bergson and John J. Walsh, both of Boston, for appellant hynes.

E. B. Conway, of Boston, for appellant Taxas Co.

F. L. Norton and M. Jenney, both of Boston, for appellees.

CROSBY, Justice.

This bill in equity is brought by the owners of land on the corner of Commonwealth Avenue and Deerfield Street, in Boston, against the owner and the lessee of land on the corner of Commonwealth Avenue and Sherborn Street, to enforce certain equitable restrictions. A final decree has been entered in favor of the plaintiffs from which the defendants appealed. The case was referred to a master. The defendants' objections to his report were overruled and an interlocutory decree was entered confirming it and denying a motion for recommittal. With the exception of part of the testimony of two witnesses, the evidence is not reported. The question for decision is whether the final decree is warranted upon the facts found and those agreed to by the parties.

A plan dated January 9, 1894, was introduced in evidence marked exhibit three. The estates of the plaintiffs and defendants are both on the Commonwealth Avenue side of block C, the plaintiffs' estate being marked on the plan ‘Lot H’ ‘Reserved For Sale,’ and the defendants' estate being lots twenty-two and twenty-three. All the lots in block C except the plaintiffs' are subject to certain restrictions established in 1896 to remain in force until January 1, 1950, for the benefit of all the land in that block including the defendants' land. It appeared that there were ‘two sets of restrictions, one expiring in 1930 and one expiring in 1950,’ and that ‘they were the same restrictions only covering a wider area.’ These restrictions prohibit the erection, placing or use on said land of any buildings other than dwelling houses or outbuildings to dwelling houses, the erection of stables of any kind and the use of any building as an apartment house, family hotel, or flats, and prohibit in design or construction any building to be fitted for occupancy by more than one family, or to be used for manufacturing, mercantile, or mechanical purposes.

The plaintiffs, on August 3, 1923, in reliance upon the restrictions which prohibited the use of buildings for commercial purposes, purchased lot H; they improved it and erected thereon a substantial wooden building and installed gasoline tanks and pumps and other apparatus commonly used in gasoline filling stations. The defendant Doris Hynes, the owner of lots twenty-two and twenty-three, leased them to the defendant The Texas Company, which a short time before the filing of the bill placed upon the lots of building and certain structures customarily found and used at gasoline filling stations. The building was of sheet metal sixteen feet long, four feet deep, and five feet nine inches high, upon a cement platform raised six or eight inches above the ground, having 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. The Texas Company is using said premises as a gasoline filling station for the sale of gasoline and oil, and for rendering the customary service of gasoline stations. The master found that the structure on these lots is a building within the meaning of that word as used in the restrictions, and that the building is being used for mercantile and mechanical purposes in violation of the restrictions.

On ten lots facing the Bay State Road side of block C are ten dwelling houses, erected before 1923; they are the only buildings erected, placed or used in block C except the following: About 1928 a structure, having the appearance of a room in a dwelling house, was erected on lots twenty and twenty-one for the purpose of exhibiting furniture arranged as though the room were furnished. After about two years this was abandoned. In June, 1929, a tent was placed on lots one and two for the display and sale of used cars; this continued for almost two months. Gasoline and oil were delivered from a filling station across the street and sold on the premises. In 1930 a wooden building ten feet wide, twelve feet deep, and ten and one half feet high was built on lots one and two and was laid out as a miniature golf course; after about four months this enterprise was abandoned. The master found that with these three exceptions there have been no violations of the restrictions in block C, other than that by the defendants in the present case. It is found, however, that several bill boards have been erected in block C on the Commonwealth Avenue side.

The same restrictions as appear in block C were established at the same time for all the blocks marked A to G on the plan which comprised all the land between Commonwealth Avenue and Bay State Road extending westerly from Deerfield Street to Cousen's Coal Wharf, shown on the plan. By express language each set of restrictions was limited to the land in the block in which the restricted lots respectively were located. All the land in blocks E, F and G extending from Granby Street to Cousen's Coal Wharf is owned by Boston University which has prepared plans for the development of the tract for university purposes. Blocks A and B on the north side of Bay State Road west of Deerfield Street are used exclusively for single family dwellings, the Charles River being in the rear of them. The master found that there have been no violations of the restrictions in the whole restricted area shown on the plan except those hereinbefore referred to in block C, and the erection of the four-story brick building known as ‘Dr. Leahy's clinic,’ on lot one in block D.

The master found that land outside the restricted area and south of Commonwealth Avenue within a radius of a quarter of a mile of the plaintiffs' land is used almost exclusively for business purposes, and mostly for the automobile and automobile accessories business; that the only buildings used for dwellings are hotels and apartment houses; that buildings erected as single family dwellings are now used for physicians' offices, or fraternity houses, with a few exceptions.

It was agreed by the parties that certain facts are agreed to in addition to the facts stated by the master and are made a part of the record; that so far as such agreed statements are inconsistent with any facts found by the master the agreed facts are to be taken as true. These additional facts are recited in the record and need not be herein stated.

There was no appeal from the interlocutory decree overruling the defendants' exceptions to the master's report and confirming the same. The question presented for decision is whether the final decree is justified by the facts found. Nichols v. Kimball, 272 Mass. 325, 333, 172 N. E. 204;Lamb Knitting Machine Co. v. Chicopee Mfg. Co., 273 Mass. 506, 517, 174 N. E. 130, and cases cited.

In accordance with the well established rule the facts found by the master must be accepted as true unless mutually inconsistent or contradictory and plainly wrong. Prudential Trust Co. v. McCarter, 271 Mass. 132, 139, 171 N. E. 42;Nelson v. Town of Belmont, 274 Mass. 35, 39, 174 N. E. 320. The restrictions by their express terms apply to the defendants' lots for the benefit of the plaintiffs' lot. There is nothing to show that the restrictions upon the defendants' lots have been released by the plaintiffs or by their predecessors in title. The agreement of the parties above referred to relates to a deed and a release of the restrictions on lots in block C other than lots twenty-two and twenty-three and lot H, and cannot affect or impair the rights of the plaintiffs to enforce such restrictions against the defendants. Moreover, the purchaser named in the release reserved his rights to enforce the restrictions as to any other land owned by him and entitled to the benefit of the restrictions. The contention of the defendants that the right to enforce the restrictions has been abandoned cannot be sustained. There is nothing to show that any acts by the owners of lot H or by their predecessors in title which unequivocally manifest an intention to relinquish the restrictions, or a purpose inconsistent with their further existence, and the master so found. Hartt v. Rueter, 223 Mass. 207, 111 N. E. 1045. In the absence of a report of the evidence this finding must stand.

The restrictions have been in existence since they were established in 1896, until 1931 when the plaintiffs' bill was filed. The erection and temporary maintenance and use of bill boards and other structures upon lots in block C by other owners, if it be assumed they were so erected and maintained in violation of the restrictions, cannot affect the rights of the plaintiffs even if they did not object to them. It was said in Bacon v. Sandberg, 179 Mass. 396, at page 399, 60 N. E. 936, 937: ‘It appears to be settled in this commonwealth that a plaintiff is not prevented from obtaining relief by the fact that he has not objected to a violation of a restriction by some one in the neighborhood other than the defendant.’ We are of opinion that bill boards and the other structures which have heretofore been erected upon lots other than those of the plaintiffs and the defendants are not buildings, and for that reason their erections are not violations of the restrictions. It was held in Inspector of Buildings of Falmouth v. General Outdoor Advertising Co., Inc., 264 Mass. 85, 88, 161 N. E. 899, that a bill board was not a building. The other structures shown to have been erected on lots not owned by the parties in any...