Nashua Garden Corp. v. Gordon, 78-008

• Decision Date: 17 May 1978
• Docket Number: No. 78-008,78-008
• Citation: 118 N.H. 379,386 A.2d 1278
• Parties: NASHUA GARDEN CORPORATION v. Robert GORDON et al.
• Court: New Hampshire Supreme Court

Page 1278

386 A.2d 1278

118 N.H. 379

NASHUA GARDEN CORPORATION v. Robert GORDON et al.

No. 78-008.

Supreme Court of New Hampshire.

May 17, 1978.

Stein & Gormley, Nashua (Arthur O. Gormley, Nashua, orally), for plaintiff.

Prunier & Mazerolle, P. A., Nashua, and Goodwin, Proctor & Hoar, Boston, Mass. (Gerald R. Prunier, Nashua, orally), for defendants.

GRIMES, Justice.

In this declaratory judgment action the issue is whether certain restrictive covenants imposed on plaintiff's land by deed should be declared null and void and the defendants' enjoined from enforcing the provisions of said restrictive covenants.

In October 1964, Riverside Realty Corporation (hereinafter "Riverside") conveyed all of its land except 33 acres to Fleurette Fournier, as trustee for the stockholders of Riverside. On October 22, 1964, the defendants, intending to develop a shopping center, obtained options on all of the outstanding stock of Riverside from the Riverside shareholders, and on or about October 23, 1964, the defendants exercised the options and thereby acquired the 33 acre tract. The option agreement contained the following covenant.

"In connection with the land previously conveyed to the OPTIONORS (the Riverside Shareholders) by the Riverside Realty Corporation, the OPTIONORS covenant and agree that no retail business selling hard goods, soft goods, groceries, drugs, furniture, hardware (sic) appliance, or any business enterprise competitive with business already existing or contracted for in the proposed shopping center (excluding motel with restaurant) or any use prejudicial by reason or (sic) noise, odor or unsightly appearance with the intended or actual use by the OPTIONEES of Riverside Realty Corporation (the defendants) will be permitted."

Riverside was liquidated in 1965, and the 33 acre parcel was transferred to the defendants as trustees for Vickerry Realty Company Trust (hereinafter "Vickerry"). Vickerry thereafter constructed a shopping center which included a bank.

On March 29, 1967, Fournier, as trustee, conveyed a ten acre parcel of land that was part of the 40 acre tract conveyed to her by Riverside to the plaintiff. The deed expressly subjected the parcel to the restrictions contained in the option agreement. On April 7, 1969, Fournier conveyed to Barham Realty Corporation (hereinafter "Barham") a one acre parcel of land, which was also part of the land previously conveyed to her by Riverside. This deed contained the same restrictions as those contained in the option agreement and the deed to the plaintiff.

When it became known that Barham intended to construct a bank on the land, defendants brought an action against Barham and Fournier to enforce the restrictions in Barham's deed. The matter was settled by defendants agreeing to waive their right to enforce the restrictive covenants in return for Fournier's agreement to lease two parcels, totalling about 24 acres, immediately adjacent to defendants' 33 acre tract. The lease was executed between Fournier and the defendants, not as trustees of Vickerry, but as trustees of a newly established trust, Coliseum Vickerry Realty Trust, whose trustees and beneficiaries are substantially identical to those of Vickerry.

In October 1972, the two trusts executed a Deed of Declaration recorded in Hillsborough County Registry establishing a plan to develop the premises as a community shopping center, and thereafter a department store was constructed which was leased to Montgomery Ward Co., Inc.

In May 1975, p...