Ladd v. City of Boston

• Decision Date: 20 June 1890
• Citation: 24 N.E. 858,151 Mass. 585
• Parties: LADD v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

151 Mass. 585

24 N.E. 858

LADD v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

June 20, 1890

COUNSEL

Ranney &amp Clark, for petitioner.

T.M Babson, for defendant.

OPINION

HOLMES J.

The ground of the motion to dismiss the petition is that the petition does not show any taking of any estate of the petitioner for which the city of Boston is liable, and that is the only question upon which we pass. It may be that a separate petition ought to have been filed for each estate taken, but upon that we express no opinion at this stage. Neither do we express any opinion on the question of parties or upon the effect of a previous petition having been filed in respect of some of the same lots, if such be the fact.

It appears that the plaintiff's predecessor in title, and the then owner of the land taken by the city for the new court-house, were parties to an indenture whereby it was covenanted, among other things, that the land in front of the plaintiff's lot, and just across the street, should not be built upon beyond a certain line, on what is now Pemberton square, and should be subject to some other similar negative restrictions. This land the city has taken free of these restrictions. If the plaintiff has an easement, the city must pay for it.

The right to have land unbuilt upon for the benefit of the light air, etc., of neighboring land, may be made an easement, within reasonable limits, by deed. Brooks v. Reynolds, 106 Mass. 31. And such an easement may be created by words of covenant as well as by words of grant. Hogan v. Barry, 143 Mass. 538, 10 N.E. 253. In order to attach the easement to the dominant estate, it is not necessary that it should be created at the moment when the dominant or the servient estate is conveyed, if the purport of the deed is to create an easement for the benefit of the dominant estate. Railroad Co. v. Koelle, 104 Ill. 455; Wetherell v. Brobst, 23 Iowa, 586, 591; Gale, Easem. 45, 46. Of course, it does not matter that, by the same deed, numerous parties grant similar or reciprocal easements over or in favor of many parcels of land. Tobey v. Moore, 130 Mass. 448; Beals v. Case, 138 Mass. 138, 140. Neither is it material that the indenture assumed to provide that a majority of three-fourths of the owners of the lots concerned might terminate the rights which it created.

If then, we are to assume that at the time of the indenture the owner of the...