Rudnick v. Murphy

• Decision Date: 29 January 1913
• Citation: 100 N.E. 643,213 Mass. 470
• Parties: RUDNICK et al. v. MURPHY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

213 Mass. 470

100 N.E. 643

RUDNICK et al. v. MURPHY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 29, 1913

COUNSEL

John

E. Macy and Carl Rudnick both of Boston, for petitioners.

Jos. P Lyons, of Boston, for City of Boston.

Anderson Sweetser & Wiles and Geo. A. Sweetser, all of Boston, for respondents Partridge & Russell.

OPINION

SHELDON J.

Some very interesting and important questions are raised in this case, which we do not find it necessary to consider; for if all other matters were decided in favor of the petitioners we are yet of opinion that the writ of certiorari ought not to be issued for their relief.

The petitioners seek to compel the owners of the adjoining lot to build in a manner exactly opposite to that which they have themselves adopted. They would require these adjoining owners to leave in the rear of their lot a vacant space or yard of the width required by St. 1907, c. 550, § 55, although the petitioners themselves, in violation of the same statute, have left no vacant space or open yard whatever upon the rear of their own land abutting upon the rear of the land of these adjoining owners. The petitioners have no property right in the obedience of their neighbors to the statutory requirements (Hagerty v. McGovern, 187 Mass. 479, 73 N.E. 536), although we assume that the value of their property may be so affected as to entitle them to prosecute this petition under the provisions of section 129 of the statute already referred to.

But, however, much the value of their property may be affected by the fact that a strip of only three feet wide of their neighbors' land is to be left open for their advantage, it is plain that the damage to those neighbors from the petitioners' act in leaving no open space at all upon their own abutting land must be proportionally much greater. After causing this loss to their neighbors, the petitioners are not in a position to invoke the exercise of a discretionary remedy to prevent less injurious action of the same kind on the part of their neighbors. It is further to be borne in mind that the loss of value to the petitioners' estate must be largely a loss of the increment of value which they had wrongfully obtained by occupying the whole of their own lot to the detriment of their neighbors' property.

Evidently if under this state of facts the petitioners' remedy had been in equity, and if they were now seeking by equitable process to compel their neighbors to leave open the full space which it is claimed should be left open upon their neighbors' land, the petitioners would fail, both for the reason that they who seek equity must do equity, and because it could not be said that they came into court with clean hands, or as an old maxim puts it, 'He that hath committed inquity shall not have equity.' Railroad Co. v. Soutter, 13 Wall. 517, 523, 524, 20 L.Ed. 543; Johnson v. Moore, 33 Kan. 90, 99, 5 P. 406; Goble v. O'Connor, 43 Neb. 49, 58, 61 N.W. 131. Their misconduct was in regard to the very matter now in litigation, the leaving of an open and unoccupied space between the buildings upon these two adjacent lots of land; it has affected the relations of the parties and of their respective properties to each other, and would result, if the petitioners' claim were maintained, in securing to them an unjust and inequitable advantage at the expense of their neighbors. This comes exactly within the restrictions of the rule stated in Langdon v. Templeton, 66 Vt. 173, 182, 28 A. 866, and in Hays' Estate, 159 Pa. 381, 28 A. 158. The principle is declared in our own decisions. Lawton v. Estes, 167 Mass. 181, 45 N.E. 90, 57 Am. St. Rep. 450; Snow v. Blount, 182 Mass. 489, 65 N.E. 845; Downey...