Lowell Inst. v. City of Lowell
| Decision Date | 19 May 1891 |
| Citation | 27 N.E. 518,153 Mass. 530 |
| Parties | LOWELL INSTITUTION FOR SAVINGS v. CITY OF LOWELL. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Benj. F. Butler and Prentiss Webster, for plaintiff.
George F. Richardson, L.T. Trull, and F.N. Wier, for defendant.
The burden of proof is on the plaintiff to show from the terms of the grant to the defendant, or from the situation and circumstances, that it was the intention of the grantor, in inserting the condition, to create a servitude or right which should inure to the benefit of the lot of land now owned by the plaintiff, and which should be annexed to it as an appurtenance. Beals v. Case, 138 Mass. 138, and cases there cited. If such a servitude was imposed for the benefit of the lot now owned by the plaintiff, it must have been at the time of the grant to the defendant. Nothing that has happened since could impair the defendant's title in this particular, without its consent. We are therefore to look to see if enough can be found in the deed itself, or in the situation and circumstances, fairly to show that any such right or easement was then created in favor of the lot which the plaintiff afterwards bought. In the first place, it is apparent that the idea of keeping the lot open originated with the defendant. The original owners never had a scheme or plan that their lots in this neighborhood should not be built upon at all, but only that the buildings must be of brick and stone. This latter requirement is not mentioned in the deed to the defendant, and there is nothing to show that the defendant had notice of it. The ruling that the defendant's land was not subject to that restriction was right. The first suggestion of keeping the lot open is found in the vote of the city council authorizing the purchase of the two lots, one on the south side of Middle street, and the other being the lot now in question, on the north side "the latter to be forever kept open;" and the expenditure to be charged to the appropriation for grammar and primary school-houses. On the same day a resolution was passed authorizing the erection of a grammar school-house on the south lot. The deeds of the two lots were taken simultaneously a few weeks afterwards. The deed of the north lot contains the clause upon which the plaintiff now relies. It is as follows: "But this conveyance is made on the express condition that no building shall ever be erected on the above-mentioned...
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