Loud v. Pendergast
| Decision Date | 19 May 1910 |
| Parties | TOUD v. PENDERGAST. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Cutler & James, for appellant.
Harold Stearns Davis, for appellee.
This is a suit to restrain the alleged violation of a building restriction. A tract of land called 'Shirley Park' was laid out in 1895 with streets, and the lots were sold subject to the restriction, imposed as a general scheme for the common benefit, that 'all buildings shall be set back from the street line at least ten feet.' The plaintiff and defendant each own one of these lots, which are adjacent. Each has erected a building on her lot. A small part of the main body of the defendant's house at one corner and a bay window, extending from the ground through the second story, and a piazza and steps are within the restricted area. These constituted a violation of the restriction. Reardon v. Murphy, 163 Mass. 501 40 N.E. 854; Bagnall v. Davies, 140 Mass. 76, 2 N.E. 786; Linzee v. Mixer, 101 Mass. 512; Sanborn v. Rice, 129 Mass. 387; Payson v. Burnham, 141 Mass. 547, 6 N.E. 708.
It is urged that the plaintiff is not entitled to relief because she has been guilty of laches, because she has herself violated the same restrictions in such a way that she comes into court with unclean hands, and because the original scheme has been so generally violated in the neighborhood as to make it unconscionable to enforce the restriction against this defendant.
Relief in equity in cases of this nature is granted only when sought with promptness, and where active diligence has been exercised throughout respecting the matter of complaint. Conscience requires that one should not stand by in silence, while another makes considerable expenditures in good faith under an assumed right, and then ask a court to enforce compliance with the restrictions at great loss, when seasonable notice of other appropriate action might have prevented the wrong complained of. Stewart v. Finkelstone, 92 N.E. 37, and cases cited.
Where a plaintiff has violated the very restriction he seeks to enforce to substantially the same extent and in the same general way as has the defendant, and there is no material difference in kind or degree between them, a court of equity will not ordinarily interfere. Bacon v. Sandberg, 179 Mass. 396, 60 N.E. 936; Scollard v. Normile, 181 Mass. 412, 63 N.E. 941. Such a plaintiff is not in a position justly to complain, for he does not come into court with clean hands respecting the precise subject as to which he invokes relief, nor has he complied with the maxim that he who seeks equity must do equity. Butterick Publishing Co. v. Fisher, 203 Mass. 122, 89 N.E. 189. This rule is applied in other jurisdictions. Olcott v. Knapp, 96 A.D. 281, 89 N.Y.S. 201; s. c., 185 N.Y. 584, 78 N.E. 1108; Landell v. Hamilton, 177 Pa. 23, 35 A. 242; Ocean City Ass'n v. Headley, 62 N. J. Eq. 322, 50 A. 78; Ewertsen v. Gerstenberg, 186 Ill. 344, 57 N.E. 1051, 51 L. R. A. 310; Brutsche v. Bowers, 122 Iowa, 226, 97 N.W. 1076.
Where there has been no uniform observance of the restrictions and substantially all the landowners have so conducted themselves as to indicate an abandonment of the right, which is in the nature of an easement, to have the neighborhood kept to the standard established by the original plan and where the enforcement of the restriction against the defendant will not tend materially to restore to the district the character impressed upon it by the scheme, and the infraction complained of does not diminish the value of other estates, then it would be inequitable and oppressive to compel at great loss a compliance with the restrictions. Jackson v. Stevenson, 156 Mass. 496, 31 N.E. 691, 32 Am. St. Rep. 476; Baptist Social Union v. Boston University, 183 Mass. 202, 66 N.E. 714. There is added force to the argument drawn from these cases when as in the present case under Rev. Laws, c. 134, § 20, the restriction will expire after 30 years, about one-half of which has already run.
The facts as to which these principles are to be applied were found by the superior court. As the evidence upon which they rest is not reported they must be assumed to be true. They are, in...
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