King v. Dorgan

• Decision Date: 01 June 1962
• Parties: Emma B. KING et al., Trustees, v. James J. DORGAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 126

183 N.E.2d 126

344 Mass. 758

Emma B. KING et al., Trustees, v. James J. DORGAN et al.

Supreme Judicial Court of Massachusetts, Berkshire.

Argued May 7, 1962.

Decided June 1, 1962.

Frederick M. Myers & Frederick M. Myers, Jr., Pittsfield, for plaintiffs, submitted a brief.

George N. Tobia, Pittsfield, for defendants.

Before WILKINS, C. J., and SPALDING, WILLIAMS, CUTTER, and SPIEGEL, JJ.

RESCRIPT.

This is a suit to enforce a restrictive covenant contained in a deed given by the plaintiffs on April 26, 1958, to the defendants' predecessors in title. From a decree dismissing their bill the plaintiffs appealed. The original restriction read: 'The premises are conveyed subject to the restriction that no building or structure shall be erected thereon intended or designed to be used, nor shall said premises be used, for any purpose in connection with the existing Fair Grounds or any future race track in the vicinity either for parking or for concessions of any kind in connection with said Fair Grounds or such race track or for any other purposes so connected.' On August 26, 1958, the plaintiffs executed under seal a document entitled 'Release of Restriction' which deleted the words 'either for parking or' from the original restriction. During 1960 the defendants permitted patrons of a nearby race track to park their motor vehicles on the land which is subject to the restrictive covenant. For the reasons stated in the judge's decision, we agree with his conclusion that 'the restrictive covenant, as ultimately amended by said document of August 26, 1958, does not prohibit the defendants * * * from using said land for the parking of motor vehicles thereon.' See Krinsky v. Leventhal, 323 Mass. 160, 80 N.E.2d 477, 4 A.L.R.2d 136. Cf. Quintin Vespa Co. Inc. v. Construction Serv. Co., 1962 Mass., 179 N.E.2d 895.

Decree affirmed with costs of this appeal.