Langmaid v. Reed

• Decision Date: 22 June 1893
• Citation: 159 Mass. 409,34 N.E. 593
• Parties: LANGMAID et al. v. REED et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

159 Mass. 409

34 N.E. 593

LANGMAID et al. v. REED et al.

Supreme Judicial Court of Massachusetts, Middlesex.

June 22, 1893

COUNSEL

Chas Q. Tirrell, for appellants.

Lafayette G. Blair and Edward Avery, for appellees.

OPINION

FIELD C.J.

This bill was filed in the superior court on February 18, 1890. The principal object of the bill, as originally brought, was to enforce a restriction contained in a deed of land to the defendants, to the effect "that no building other than a dwelling house, or building usually appurtenant thereto should be erected or maintained on said land for the space of twenty years from the first day of October, A.D.1871;" and the bill alleged that the defendants had begun the erection of a building of a kind not usually appurtenant to a dwelling house, which was to be used for a "livery trading, and sales stable." The plaintiffs' deeds were subject to a similar restriction. There was also an allegation in the bill that the building which the defendants had begun to erect was designed to be used as a stable for more than four horses, and that they had not obtained any permission from the selectmen of the town of Watertown, where the land was situated, to erect and use such a stable, pursuant to Pub.St. c. 102, § 39. On May 1, 1891, the plaintiffs filed an amendment to the bill, alleging that the defendants had erected a stable of much larger dimensions than were necessary for keeping four horses, and were using the stable "as a sale stable, and place of business;" that they had not obtained permission from the selectmen of Watertown for the erection of such a stable; that such a stable was not a building usually appurtenant to a dwelling house, and was "a nuisance of such a kind and character as to greatly injure and damage the plaintiffs in their property." Certain issues were framed and submitted to a jury. The findings of the jury were generally in favor of the plaintiffs, except that they found that the building actually erected, which was of somewhat smaller dimensions than that described in the original bill, was such a building as is usually appurtenant to a dwelling house, and was not a nuisance, as alleged in the amended bill. The final decree was entered on October 3, 1892, and it appears to have been rendered by the presiding justice after "having heard the evidence and argument of the parties," etc. The defendants appealed. There is no report of any kind. The papers show only the pleadings; the issues submitted to the jury, and the findings of the jury thereon; the issuing of a temporary injunction, and a modification of it; and the final decree.

The findings of the jury, not having been set aside, must be taken as true. Franklin v. Greene, 2 Allen, 519. The justice who finally heard the cause could, however, find, on the evidence before him, any other material facts not inconsistent with these findings. The appeal brings before us no question of fact, and the only question of law is whether the decree is warranted by the frame of the bill, and is consistent with the findings of the jury. The restriction contained in the deeds expired on October 1, 1891, and therefore was not in force when the decree was rendered, to wit, October 3, 1892, and of course there could be, in the decree, no injunction against violating the restriction; but, as the restriction had been in force for more than a year and a half after the bill was filed, damages might be assessed for any violation of the restriction which was proved.

The other part of the bill, relating to the erection and use of a stable for more than four horses without the permission of the selectmen of Watertown, is distinct from the first part and rests wholly upon the statutes. Pub.St. c. 102, § 39, authorized "the supreme judicial court, or a justice thereof, in term time or vacation," to issue an injunction "to prevent such erection, occupancy, or use" of a...