Parsons v. Duryea

• Decision Date: 23 November 1927
• Parties: PARSONS et al. v. DURYEA et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

261 Mass. 314

158 N.E. 761

PARSONS et al.

v.DURYEA et al.

Supreme Judicial Court of Massachusetts, Hampden.

Nov. 23, 1927.

Case Reserved and Report from Superior Court, Hampden County; Edward T. Broadhurst, Judge.

Suit in equity by Charles H. Parsons and others, trustees, against Jesse T. Duryea and others, to enjoin defendants from carrying out grade plan and constructing a driveway. On reservation and report on pleadings and report of special master. Decree to be entered in accordance with opinion.

Harold P. Small, of Springfield, for complainants.

John F. Jennings, of Springfield, for respondents.

SANDERSON, J.

The plaintiffs, trustees of the Colony Hills Trust, seek to enjoin the defendants from carrying out a grade plan or from constructing a driveway, in violation of certain restrictions set forth in a conveyance by them to the defendant Duryea, and to have removed so much of the grading and driveway as has been constructed. The restriction referred to is in the following language:

‘Section V. No building, fence, wall or other structure shall be commenced, erected or maintained, nor shall any addition to or change or alteration therein be made, until plans and specifications, showing the nature, kind, shape, height, materials, floor plans, color scheme, locations and approximate cost of such structure and the grading plan of the lot to be built upon shall have been submitted to and approved in writing by the trustees and a copy thereof, as finally approved, lodged permanently with the trustees. The trustees shall have the right to refuse to approve any such plans or specifications or grading plan, which are not suitable or desirable, in their opinion, for aesthetic or other reasons; and in so passing upon such plans, specifications and grading plan, they shall have the right to take into consideration the suitability of the proposed building or other structure and of the materials of which it is to be built to the site upon which it is proposed to erect the same, the harmony thereof with the surroundings and the effect of the building or other structure, as planned, on the outlook from the adjacent or neighboring property.’

A master was appointed, whose report was confirmed, and thereafter the case was reserved and reported to this court upon the pleadings and the master's report.

The tract in question was divided into 74 lots, 24 of which are now owned by the plaintiff; some of them being in the block in which the defendant Duryea's lot is located. All lots conveyed have been sold subject to the restrictions above quoted. Eighteen residences have been built upon the land, and the plaintiffs have expended more than $100,000 to improve the entire tract as a high-class residential development.

Warren B. Pirnie, son-in-law and authorized agent of the defendant Duryea, erected upon the lot in question a residence at a cost of approximately $30,000, the plans for which were approved by the plaintiffs. Prior to October 1, 1925, the defendants talked with the plaintiff Parsons about the walks and driveways which should be constructed in front of Pirnie's residence, and plans showing walks but with no driveway were submitted by Warren B. Pirnie and approved by the trustees. At subsequent dates grading plans were submitted which included a driveway; these plans were disapproved by the trustees. Thereafter the defendant Pirnie notified the plaintiffs that he should disregard their...