O'Keefe v. Sheehan

• Decision Date: 01 April 1920
• Citation: 126 N.E. 822,235 Mass. 390
• Parties: O'KEEFE et al. v. SHEEHAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

235 Mass. 390

126 N.E. 822

O'KEEFE et al.

v.SHEEHAN et al.

Supreme Judicial Court of Massachusetts, Essex.

April 1, 1920.

Case Reserved from Supreme Judicial Court, Essex County.

Suit by Mary A. O'Keefe and others against Mary M. Sheehan and others. On reservation, on the pleadings, master's report, and defendant's exceptions, for the determination of the Supreme Judicial Court. Decree directed, dismissing the bill.

The report of Franklin T. Hammond, as master, follows:

In pursuance of the rule in this case, which requires the master ‘to hear the parties and their evidence and report his findings to the court together with such facts and questions of law as either party may request,’ I now report as follows:

This bill is brought by the owners of two adjoining lots of land on Broadway in Lynn to enforce a restriction upon a lot owned by one of the defendants immediately adjoining the lot of one of the plaintiffs. The history of the title to the lots in question relating to the imposition of the restriction is as follows:

1. The plaintiff Mary D. O'Keefe, hereinafter called Mary D., is now and was at the time the bill was filed the owner of a lot of land on Broadway in the city of Lynn with a dwelling house marked A on the plan attached hereto. The plaintiff Mary A. O'Keefe, hereinafter called Mary A., who is the mother-in-law of Mary D., is now and was when the bill was filed the owner of another lot on said Broadway adjoining the lot of Mary D., also containing a dwelling house and marked B on said plan. The defendant Mary M. Sheehan is now and was when the bill was filed, the owner of a third lot with a dwelling house adjoining lot B, situated on said Broadway and shown as lot C on said plan. The street numbers on Broadway are as follows:

Lot A, owned by Mary D., is numbered 414 Broadway.

Lot B, owned by Mary A., is numbered 418 Broadway.

Lot C, owned by Mary M. Sheehan, is numbered 424 Broadway.

The dimensions of the lots are given on the plan.

2. In 1881 one James B. Batcheller, who then owned a tract of land consisting of lots A, B, and C, conveyed lot A to Mary F. Batcheller by a deed dated October 17th which contained the following language, coming after the description of the granted premises:

‘This deed is granted upon the conditions * * * that neither the grantee nor her heirs or assigns shall carry on any trade or business upon said lot that shall be in the nature of a nuisance to the abutting owners or neighborhood.’

3. In 1882 the said James B. Batcheller, who then owned lots B and C, conveyed lot B to one Hill by deed dated September 6th, in which, following the description of the granted premises, there was a provision precisely similar in terms to the provision above quoted.

4. In 1883 the said James B. Batcheller conveyed lot C to one Adams by a deed dated February 13th containing a provision following the description of the premises granted identical in terms with the language quoted above.

5. Since the conveyances above mentioned there have been sundry mesne conveyances of these lots, so that the title to them at the time of the filing of the bill was as stated in paragraph 1 above. All mesne conveyances of these three lots made since the deed from James B. Batcheller originally imposing the restrictions aforesaid recited that they were made subject to the restrictions created in the original deed from Batcheller.

6. The plaintiff Mary A. is the wife of John A. O'Keefe, who is a lawyer and is now the fire prevention commissioner for the Metropolitan district. In 1886 by deed dated August 28th John A. O'Keefe took title to lot A (No. 414 Broadway) with the house thereon and Mr. and Mrs. O'Keefe purchased the adjoining house and lot B (No. 418 Broadway) the conveyance being made to his wife, Mary A. The O'Keefe family moved into the house on lot B in August, 1911, where they have lived ever since.

In 1913 by deed dated October 1st, John A. O'Keefe conveyed lot A to the plaintiff Mary D. O'Keefe, his son's wife. Mary D. and her husband moved to the house on lot A in September, 1914, and have lived there ever since.

7. The defendant Mary F. Sheehan is the mother of the defendant David J. Sheehan. The defendant Mary M. Sheehan is the wife of David J. Sheehan and the owner of lot C, numbered 424 Broadway. The defendant the David J. Sheehan Company is a Massachusetts corporation organized in 1908, of which the defendant David J. Sheehan is the president, treasurer and general manager. It is a family corporation, the stock in which is owned almost entirely by David J. and his wife.

In 1907 David J. Sheehan, who was then associated in the contracting business with his father, dissolved this connection and started out in business for himself as a contractor and builder. He bought the house and lot marked C, numbered 424 Broadway, taking title in the name of his mother, Mary F. Sheehan, and moved into the house in July, 1907. At that time the buildings on lot C consisted of a dwelling house and a small private barn, known as the Toppan barn. Sheehan began with a pair of horses in the Toppan barn, having been licensed in July, 1907, to keep three horses there. Gradually as his business increased he added more accommodations for horses. In the spring of 1908 he built a first addition to the Toppan barn. It was 65 feet long and 32 wide and contained stalls for 30 horses. In the spring of 1912 Sheehan put a second extension upon his barn of the same width as the first extension (32 feet) and 105 feet long, so that the combined first and second extensions made a barn 170 feet long by 32 feet wide.

Sheehan's business grew substantially since he began in 1907, and more and more horses have been kept on the premises at 424 Broadway. The dates of the various licenses granted to him to keep horses on this lot by the Lynn board of health are as follows:

July 31, 1907, a license to keep 3 horses was granted.

February 10, 1909, a license to keep 16 horses was granted.

May 25, 1910, a license to keep 40 horses was granted.

April 26, 1911, a license to keep 60 horses was granted, together with a license to erect an addition.

8. On December 27, 1915, the barn, consisting of the two extensions and the Toppan barn, was almost totally destroyed by fire. All of the building above the first floor was burned. There was left after the fire the entire foundation, the girders and floor timbers, except in one spot, and above six-sevenths of the floor boards. The foundation of the first extension was of brick above and concrete below the ground; of the second extension the foundation on the north side (toward lot B) was concrete. The rest of the floor rested on iron columns upon concrete foundations. After the fire the insurance company paid a loss of $9,340 on a policy of $11,000, being allowed the sum of $1,660 for the part of the building not destroyed by the fire.

9. On December 28, 1915, the day following the fire, the plaintiffs caused to be served upon the defendants a notice of the following tenor:

‘To Mary M. Sheehan, David J. Sheehan and David J. Sheehan Company-Greeting:

‘You are hereby severally notified that the title to the premises numbered 426 Broadway, in the city of Lynn, now said to be in Mary M. Sheehan, is held through deed from James B. Batcheller, subject to the restriction that ‘the owner shall not carry on any trade or business upon said lot that shall be in the nature of a nuisance to the abutting owner or to the neighborhood.’

‘You are hereby further notified that Mary A. O'Keefe and Mary D. O'Keefe hold the title to the premises numbered respectively 418 Broadway and 414 Broadway from the same grantor and under the same restrictions, and that Mary A. O'Keefe is an abutting owner.

‘And the said Mary A. O'Keefe and Mary D. O'Keefe hereby notify you and each of you that the trade or business heretofore carried on at the said No. 424 Broadway by David J. Sheehan, or the David J. Sheehan Company, has been ‘in the nature of a nuisance to the abutter and to the neighborhood,’ and that it is the intention of the said Mary A. O'Keefe and Mary D. O'Keefe, if an attempt be made to resume said business on said premises or to use said premises in any other manner that would be ‘in the nature of a nuisance to the abutting owner and the neighborhood,’ to seek a restraining order from the court.

‘[Signed] Mary A. O'Keefe,

‘Mary D. O'Keefe,

‘By John A. O'Keefe, the Attorney for Each.

‘A true copy.

‘Attest; Eben T. Brackett, Deputy Sheriff.’

The defendants thereupon applied for a permit to rebuild the stable and on January 31, 1916, they caused to be served upon the plaintiffs a notice as follows:

‘Mary A. O'Keefe and Mary D. O'Keefe:

‘Please take notice that I, Mary M. Sheehan, owner of the premises No. 426 Broadway, in the city of Lynn, deny that the restriction mentioned in your notice to me of recent date in any way prohibits the business of the David J. Sheehan Company, as heretofore carried on.

‘You are further notified that I intend forthwith to rebuild the stable which was recently destroyed by fire on my said premises, and to use the reconstructed stable for the stabling of horses in the same manner and to the same extent as the business of the David J. Sheehan Company was carried on before said fire.

‘This notice is given to enable you to apply to a court of equity for an injunction if you desire, before I incur great expense, and before such action by you may cause me irreparable injury and damage.

‘If you do not act at once upon receipt of this notice I shall assume that you do not intend to oppose the erection and occupation of the stable in the manner herein described.

‘[Signed] Mary M. Sheehan,

‘By Her Attorneys, Parsons & Bowen.’

On February 2, 1916, the board of health issued to the defendant the David J. Sheehan Company a license to build and use a stable for 50 horses upon the premises at 424 Broadway (lot C). The license was in the following form:

‘2595

‘City of Lynn Board...