Snow v. Van Dam
| Decision Date | 29 July 1935 |
| Citation | 291 Mass. 477,197 N.E. 224 |
| Parties | SNOW et al. v. VAN DAM et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Suit in equity by Thurston A. Snow and others against Arie Van Dam and others. From final decree for plaintiffs entered in the superior court, defendants appeal.
Modified and affirmed.
Appeal from Superior Court, Middlesex County; Walsh, Judge.
W. G Clark and C. R. Clark, both of Gloucester, and E. Morley, of Manchester, for appellants.
Hale & Door, of Boston (L. E. Green and A. F. Richard, both of Boston, of counsel), for appellees.
This suit, although brought in Middlesex county, relates to land on the seashore at Brier Neck in Gloucester in Essex county title to which, after the decision in Luce v. Parsons, 192 Mass. 8, 77 N.E. 1032, was registered on September 5, 1906, in the name of one Luce, from whom title soon passed to one Shackelford. The tract so registered was bounded northerly by a line through a pond not far northerly from a county road called Thatcher Road, which ran through the tract from west to east; easterly by land of other owners; southerly by the Atlantic Ocean, where there was a fine bathing beach; and westerly by Witham Road. The entrance to the tract was at the northwesterly corner, where is situated the lot now owned by the defendant Van Dam, which is the larger part of a triangular piece of land lying north of Thatcher Road and enclosed by Thatcher Road, Witham Road and another road.
The northerly part of the tract, including the lot of the defendant Van Dam, is low and marshy. When the tract was registered in 1906, this northerly part was deemed unsuitable for building, and worthless, and consequently was not divided into lots on the earlier plans. Thatcher Road is a public way on which electric cars used to run. There is no summer residence on the north side of that way, and only one bounding on that way on the south side.
From Thatcher Road, going south, there is a fairly sharp ascent to the top of a low hill, from which there is a gentle slope southward to the beach. This hill and slope were in 1906, and still are, well adapted to summer residences. In 1907 the whole tract, except the part north of Thatcher Road, was divided into building lots. By later plans some of the lots were further subdivided and the boundaries of others were changed. In all, about a hundred building lots were laid out. Each of the plaintiffs owns one of these building lots, either on the hill or on the southerly slope, on which he has built a summer residence.
Between July 8, 1907, and January 23, 1923, almost all the lots into which the part of the tract south of Thatcher Road was divided, including the lots of most of the plaintiffs, were sold at various times by the general owner of the tract to various persons. With negligible exceptions, the deeds contained uniform restrictions, of which the material one is that ‘ only one dwelling house shall be erected or maintained thereon at any given time which building shall cost not less than $2500 and no outbuilding containing a privy shall be erected or maintained on said parcel without the consent in writing of the grantor or their [sic] heirs.’ The entire unsold remainder of the land south of Thatcher Road was conveyed, on June 15, 1923, by Shackelford, the general owner of the unsold parts of the tract, to J. Richard Clark, subject to similar restrictions.
The low and marshy land north of Thatcher Road was first divided, on a revised plan of 1919, into three parcels, called C, D and E. The revised plan covered the whole Brier Neck tract. On January 23, 1923, about five months before the deed to J. Richard Clark, already mentioned, said Shackelford conveyed said lots C, D and E to one Robert C. Clark, subject to the following restrictions: ‘ Only one dwelling house may be maintained on each of said parcels of land at any given time, which dwelling house shall cost not less than Twenty-five Hundred Dollars ($2500) unless plans and specifications for a dwelling house of less cost shall be approved in writing by the grantor of said parcels of land, and no outbuilding containing a privy shall be maintained on either of said parcels of land without the consent in writing of the grantor. * * *’ Lot D is the last of which the larger part is now owned by the defendant Van Dam, having been conveyed to him by Robert C. Clark on February 18, 1933, subject to the restrictions contained in the deed to him ‘ in so far as the same may be now in force and applicable.’ This phrase did not purport to create any new restriction, and could have no such effect. Sargent v. Leonardi, 223 Mass. 556, 558, 559, 112 N.E. 633. The defendants have erected on lot D a large building to be used for the sale of ice cream and dairy products and the conducting of the business of a common victualler. The plaintiffs bring this suit for an injunction, claiming a violation of the restrictions. We think that the erection of a building to be used for business purposes was a violation of the language of the restriction. Powers v. Radding, 225 Mass. 110, 114, 113 N.E. 782. The zoning of the land for business in 1927 by the city of Gloucester could not operate to remove existing restrictions. Jenney v. Hynes, 282 Mass. 182, 194, 184 N.E. 444.
Prior to the conveyance from Shackelford to Robert C. Clark on January 23, 1923, there could not have been, under the law of this commonwealth, any enforceable restriction upon lot D. Sprague v. Kimball, 213 Mass. 380, 100 N.E. 622, Ann.Cas. 1914A, 431. If any now exists in favor of the lands of the plaintiffs, it must have been created by that deed.
A restriction, to be attached to land by way of benefit, must not only tend to benefit that land itself (Norcross v. James, 140 Mass. 188, 192, 2 N.E. 946; Shade v. M. O'Keefe, Inc., 260 Mass. 180, 156 N.E. 867; Sheff v. Candy Box, Inc., 274 Mass. 402, 406, 174 N.E. 466; Parsons v. Duryea, 261 Mass. 314, 158 N.E. 761), but must also be intended to be appurtenant to that land. Clapp v. Wilder, 176 Mass. 332, 339, 57 N.E. 692,50 L.R.A. 120. If not intended to benefit an ascertainable dominant estate, the restriction will not burden the supposed servient estate, but will be a mere personal contract on both sides. Lowell Institution for Savings v. Lowell, 153 Mass. 530, 27 N.E. 518; Bessey v. Ollman, 242 Mass. 89, 91, 136 N.E. 176; Hill v. Levine, 252 Mass. 513, 516, 517, 147 N.E. 837; Orenberg v. Johnston, 269 Mass. 312, 168 N.E. 794; London County Council v. Allen, [1914] 3 K. B. 642; In re Sunnyfield, [1932] 1 Ch. 79; In re Union of London & Smith's Bank Limited's Conveyance, [1933] 1 Ch. 611.
In the absence of express statement, an intention that a restriction upon one lot shall be appurtenant to a neighboring lot is sometimes inferred from the relation of the lots to each other. Peck v. Conway, 119 Mass. 546; Hogan v. Barry, 143 Mass. 538, 539, 10 N.E. 253; Welch v. Austin, 187 Mass. 256, 72 N.E. 972,68 L.R.A. 189; Codman v. Bradley, 201 Mass. 361, 368, 87 N.E. 591; Lodge v. Swampscott, 216 Mass. 260, 103 N.E. 635. See, also, Clapp v. Wilder, 176 Mass. 332, 57 N.E. 692,50 L.R.A. 120. But in many cases there has been a scheme or plan for restricting the lots in a tract undergoing development to obtain substantial uniformity in building and use. The existence of such a building scheme has often been relied on to show an intention that the restrictions imposed upon the several lots shall be appurtenant to every other lot in the tract included in the scheme. Hano v. Bigelow, 155 Mass. 341, 343, 29 N.E. 628, and cases cited; Jackson v. Stevenson, 156 Mass. 496, 501, 31 N.E. 691,32 Am.St.Rep. 476; McCusker v. Goode, 185 Mass. 607, 611, 71 N.E. 76; Maclary v. Morgan, 230 Mass. 80, 82, 119 N.E. 189; Wilson v. Middlesex Co., 244 Mass. 224, 231, 138 N.E. 699; Lacentra v. Valeri, 244 Mass. 404, 406, 138 N.E. 388; Abbott v. Steigman, 263 Mass. 585, 161 N.E. 596. In some cases the absence of such a scheme has made it impossible to show that the burden of the restriction was intended to be appurtenant to neighboring land. Sharp v. Ropes, 110 Mass. 381; Webber v. Landrigan, 215 Mass. 221, 102 N.E. 460; Stewart v. Alpert, 262 Mass. 34, 159 N.E. 503. In the present case, unless the lots of the plaintiffs and the defendant Van Dam were included in one scheme of restrictions, there is nothing to show that the restrictions upon the lot of the defendant Van Dam were intended to be appurtenant to the lots of the plaintiffs.
What is meant by a ‘ scheme’ of this sort? In England where the idea has been most fully developed, it is established that the area covered by the scheme and the restrictions imposed within that area must be apparent to the several purchasers when the sales begin. The purchasers must know the extent of their reciprocal rights and obligations, or, in other words, the ‘ local law’ imposed by the vendor upon a definite tract. Reid v. Bickerstaff, [1909] 2 Ch. 305; Kelly v. Barrett, [1924] 2 Ch. 379, 399 et seq. Where such a scheme exists, it appears to be the law of England and some American jurisdictions that a grantee subject to restrictions acquires by implication an enforceable right to have the remaining land of the vendor, within the limits of the scheme, bound by similar restrictions. Spicer v. Martin, 14 App. Cas. 12, 24, 25; In re Birmingham & District Land Co., [1893] 1 Ch. 342, 351, 352. Jaeger v. Mansions Consolidated, Ltd., 87 L. T. (N. S.) 690, 697; Gedge v. Bartlett, 17 T. L. R. 43; Sanborn v. McLean, 233 Mich. 227, 206 N.W. 496, 60 A.L.R. 1212; Johnson v. Mt. Baker Park Presbyterian Church, 113 Wash. 458, 194 P. 536. See, also, Nashua Hospital Association v. Gage, 85 N.H. 335, 341, 342, 159 A. 137. Traces of that idea can be found in our own reports. ...
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