Lincoln v. Burrage

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: HOLMES, C.J.
• Citation: Lincoln v. Burrage, 177 Mass. 378, 59 N. E. 67 (Mass. 1901)
• Decision Date: 03 January 1901
• Parties: LINCOLN et al. v. BURRAGE.

177 Mass. 378

59 N.E. 67

LINCOLN et al. v. BURRAGE.

Supreme Judicial Court of Massachusetts, Suffolk.

January 3, 1901

COUNSEL

Reginald Foster and W. D. Turner, for plaintiffs.

Bancroft G. Davis, for defendant.

OPINION

HOLMES C.J.

The acceptance by Rose of the conveyance to him implied a promise by him to pay for the party wall at the time of use. Although not a covenant, under our decisions such a promise might be held, in equity, if not at law, to follow the analogy of covenants running with the land in a case to which that analogy would apply. Manufacturing Co. v. Staples, 164 Mass. 319, 41 N.E. 441, 29 L. R. A. 500. But it is most unusual to see a covenant under which the rights are held in gross and the burdens go with the land. We suspect that it would be hard to find in the books another case like Middlefield v. Knitting Co., 160 Mass. 267, 272, 35 N.E. 780. Compare, further, Walsh v. Packard, 165 Mass. 189, 192, 42 N.E. 577, 40 L. R. A. 321. Leaving cases of landlord and tenant on one side, commonly, where the burden of a covenant goes with land, the covenant either creates a servitude, or a restriction in the nature of a servitude, in favor of a neighboring parcel, or else is in some way incident to and inseparable from such a servitude, or, if attached to the dominant estate, appears to be the quid pro quo for the easement enjoyed. Savage v. Mason, 3 Cush. 500; Richardson v. Tobey, 121 Mass. 457; Norcross v James, 140 Mass. 188, 191, 2 N.E. 946; King v Wight, 155 Mass. 444, 29 N.E. 644; Manufacturing Co. v. Staples, 164 Mass. 319, 41 N.E. 441, 29 L. R. A. 500. In the present case Rose's assumpsit did not purport to be for the benefit of the owner for the time being of the adjoining land. The deed which he accepted showed that his grantors had conveyed that land so that they could not annex a promise to it, and disclosed no interest on their part to secure compensation for use of the party wall to their grantee. On the contrary, the stipulation is in favor of the executors making the conveyance, 'or the successors in said trust from time to time,' showing in the clearest way that the benefit of the promise was intended to be personal, and a postponed compensation to the estate for the use of a wall which the testator had built. This is the construction upon which this action is brought. But if the promise is personal on the side of the benefit, no reason whatever is shown for departing from the tradition of the law in order to make it follow the land with its burden, as we already have said. Indeed, the words of Rose's promise are satisfied if they be read as a personal promise to pay whenever he or his assigns may use the wall. Furthermore, it never is to be forgotten that under all circumstances it is an anomaly requiring explanation when an active duty is other than personal, and is attached to land. See Norcross v. James, 140 Mass. 188-190, 2 N.E. 946; Cole v. Hughes, 54 N.Y. 444. This difficulty is felt so strongly in England that, when a duty to pay for a party wall is recognized between owners who have not contracted together personally, it seems likely that it will be worked out in terms of implied contract, as it was in Irving v. Turnbull (1900) 2 Q. B. 129. See, also, Maine v. Cumston, 98 Mass. 317, 320; Standish v. Lawrence, 111 Mass. 111, 114; Richardson v. Tobey, 121 Mass. 457, 459, 460.

The plaintiffs put their argument in the form last suggested. But we do not see any reason why a change in the fiction should enlarge their rights. In fact, the defendant did not contract with the plaintiffs. Any ground upon which she should be held liable in contract would be a fiction. In the present case, where the plaintiffs have no interest in the property used by the defendant...