Myers v. Salin

• Decision Date: 02 April 1982
• Parties: Henrietta F. MYERS et al. 1 v. John C. SALIN et al. 2
• Court: Appeals Court of Massachusetts

Page 233

431 N.E.2d 233

13 Mass.App.Ct. 127

Henrietta F. MYERS et al. ¹ v. John C. SALIN et al. ²

Appeals Court of Massachusetts, Suffolk.

Argued Nov. 12, 1981.

Decided Feb. 3, 1982.

Further Appellate Review Denied April 2, 1982.

Joseph J. Hurley, Boston (Stuart R. Malis, Boston, with him), for defendants.

Stuart DeBard, Boston, for plaintiffs.

Before ARMSTRONG, CUTTER and KASS, JJ.

CUTTER, Justice.

This complaint, filed by neighbors of the defendants (the Salins) in the Land Court on November 27, 1978, and later amended, seeks relief against the Salins' construction of a dwelling on their registered shore land in Duxbury (the locus). There was a three-day trial before a Land Court judge who also took a view of the locus and the surrounding area. Thereafter he made detailed written findings, on the basis of which judgment was entered declaring the rights of the parties and directing the Salins within nine months to remove their dwelling to another location and to restore to its former condition the easterly extension of Bradford Road to the shore toward Duxbury Bay. Other minor relief was granted to the plaintiff Mrs. Myers and (on a counterclaim) against three of the plaintiffs. The Salins have appealed and the plaintiffs appeal on one issue.

A. The locus and certain other properties in the area are shown on the plan (based upon the plan attached by the Land Court judge to his decision).

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The Salins, as tenants by the entirety, acquired the locus on July 21, 1972, and their Land Court certificate of title contains the provisions set out in the margin. ³ Each plaintiff owns land near the locus and bases his or her contentions on covenants contained in one of the three deeds (hereafter the Whittington deeds) to Helen Perry Whittington referred to in note 3, subpar. (1). Each of the plaintiffs, except the Dows, derives title from one of the Whittington deeds. The Dows derive title to a strip of land ten feet wide from one of these deeds, but their title to other land (on which the Dow house stands) comes from another source. The plaintiff Bouthillier, by deed from John Salin, owns land which John Salin owned at the time that Salin and his wife, as tenants by the entirety, owned the locus.

B. The Whittington deeds each contained (1) a covenant by the grantor not to build (or to sell without restricting the rights of future grantees to build) on an area encompassing the location of the new Salin dwelling; (2) a reservation in behalf of the grantors of the deeds to Mrs. Whittington of the right to build bath houses on an area including that where the Salins's dwelling has been placed; (3) beach rights as listed in the margin; ⁴ and (4) a right of way over Bradford Road (including the thirty-foot wide extension). Other provisions concerning the construction of bath houses do not seem to be directly relevant. ⁵

C. The dwelling (marked "Salin House" on plan), the subject of the present litigation, was constructed by the Salins upon (and set into) a bank west of the sandy portion of the shore. When excavation and foundation construction was started in November, 1976, the bank was covered by beach grass, bushes, shrubs, and some trees. Percolation tests had been made as early as May, 1976. Shortly after starting excavation in November, 1976, the Salins invited all the plaintiffs to attend a meeting at their then house (overlooking the locus) to discuss their building plans, at a time when "just the foundation had been put in." Only Mrs. Myers, then over eighty years old and "frail," did not attend. Salin presented architectural drawings and a plot plan for review. There was testimony that at this meeting the neighbors were surprised at the construction and that there was "generally a subtle expression of opposition to the plan" on the ground that it involved "an infringement of beach rights." There had been a prior meeting of the group without the Salins. Some, at least, of the plaintiffs consulted their attorneys during late 1976, 1977, and 1978, and made an effort to ascertain precisely what their beach rights and other legal claims to object were. The plaintiffs' investigations proceeded somewhat slowly. The judge, nevertheless, found that the plaintiffs were "unaware of the rights referred to in ... (the Whittington) deeds until the fall of 1978," and some "were misled by beach rights in a 'T' shaped area (see the plan) at the easterly end of Bradford Road."

D. When this original complaint was filed on November 27, 1978, the frame of the Salin house was "open to the elements on one side." Other work had been done. Construction had "continued in a desultory sort of way through 1977," and "severe damage" was caused to the house by a big storm in February, 1978, necessitating some repairs in the summer of 1978 "after an insurance settlement for storm damage." The Land Court on December 20, 1978, denied a preliminary injunction to prevent the Salins from going forward with the construction because "the house was framed and (only) partially closed in" so that "added work was needed to preserve it." The Salins, however, were "advised that if they proceeded with the building they did so at their (own) risk."

E. The judge made the following further findings: (1) The westerly line of the locus "follows the top of the bank" which "slopes down to the ... bottom some ... (twenty-five to thirty feet) where it reaches the sand." (2) The house itself "is below the top of the bank with the foundation ... one foot above the bottom of the bank as it existed in 1976." The basement of the Salin house "rests in the sand of Duxbury Beach." (3) The Salins have impermissibly interfered with use of the extension of Bradford Road in a manner described below in part 4 of this opinion. (4) The Salins occupy some 900 square feet of Mrs. Myers's land with plantings and there are minor encroachments of a wall made of railroad ties (owned by the Salins) onto Mrs. Myers's lawn. (5) The Salins's house could be moved to their lot X (see plan) subject to zoning law requirements and to some relocation of sewer facilities. (6) Some at least of the plaintiffs have used, and have continued to use, the beach for boating and swimming.

Further facts are stated below in connection with the discussion of the several issues which have been argued.

1. The judge ruled that the covenants, unlimited in time, contained in the three Whittington deeds (1915, 1916, and 1919) created at most negative easements and thus were restrictions on the retained land of the grantors which by lapse of time had expired after thirty years, presumably because of G.L. c. 184, § 23. ⁶ From the judgment based on this ruling, the plaintiffs have appealed.

The judge based this ruling largely on implications from language in Labounty v. Vickers, 352 Mass. 337, 225 N.E.2d 333 (1967), which dealt with an implied easement for a right of way to a waterfront (and for beach privileges within an area constituting an extension of the implied way to the shore). The opinion (at 347-348) said, "A 'restriction of the use of land' is a right to compel the person entitled to possession not to use it in specified ways .... The restriction may be imposed by a negative easement (e.g., Ladd v. Boston, 151 Mass. 585, 588, 24 N.E. 858 (1890) ), by an equitable servitude or by a covenant running with the land. But the holder of such a restrictive right has no right to use the land on which he holds the restriction as he would if he held an affirmative easement. See ... (2 Casner,) Am. Law of Property, § 8.5 (1952). Only by a strained use of words can such an (affirmative) easement be considered a 'restriction on the use of land.' We are not inclined to construe this statutory phrase (in G.L. c. 184, § 26, prior to its amendment by St.1969, c. 666, §§ 2 & 3) ( ⁷ ) to include affirmative easements." ⁸

The plaintiffs contend that there is no sound basis for the distinction relied on by the Land Court judge (between affirmative and negative easements ⁹) as a test for deciding whether G.L. c. 184, §§ 23 & 26-30, apply to negative easements. See 2 Casner, American Law of Property, §§ 8.11 & 8.12 (1952). They argue that, if the asserted rights can be properly treated as "easements," either affirmative or negative, they should not be regarded as subject to the impact of G.L. c. 184, §§ 23 & 26-30.

We need not speculate about what the situation would have been if the covenants in the Whittington deeds had afforded to Mrs. Whittington the power (in order to enforce the negative easements) to go upon the grantors' retained premises to remove houses or other obstacles erected in violation of the covenants. Even such a provision might not have given the negative easement a sufficiently affirmative aspect to bring it within the Labounty case exemption of affirmative easements from G.L. c. 184, §§ 23 and 26-30. See Whitney v. Union Ry., 11 Gray 359, 360, 364-367 (1858). Compare Western Mass. Elec. Co. v. Sambo's of Mass., Inc., 8 Mass.App. 815, --- - --- & n. 7, Mass.App.Ct.Adv.Sh. (1979) 2453, 2465-2466 & n. 7, 398 N.E.2d 729. The Whittington covenants had no such affirmative aspects. They merely purport to prevent building upon certain specified land retained by the grantors. Their purpose is not made explicit as, for example, protecting the sea view of the grantee. Nothing in them places emphasis upon any special importance of the covenants to the grantee or her land, although perhaps some such significance could be inferred from the circumstances. See Doody v. Spurr, 315 Mass. 129, 133, 51 N.E.2d 981 (1943); Pion v. Dwight, --- Mass.App. ---, --- - ---, Mass.App.Ct.Adv.Sh. (1981) 389, 394-395, 417 N.E.2d 20; Highway 7 Embers, Inc. v. Northwestern Natl. Bank, 256 N.W.2d 271, 275-276 (Minn.1977). The language of the covenants seems essentially undistinguishable, as to purpose and effect, from that often employed to restrain...