St. Botolph Club, Inc. v. Brookline Trust Co.
| Citation | 292 Mass. 430,198 N.E. 903 |
| Parties | ST. BOTOLPH CLUB, Inc., v. BROOKLINE TRUST CO. et al. |
| Decision Date | 25 November 1935 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Proceedings in the land court for registration of title by the St. Botolph Club, Incorporated, against the Brookline Trust Company and others. From an adverse decision, the respondents bring exceptions and appeal.
Exceptions sustained, and appeals dismissed.
Exceptions and Appeal from Land Court, Suffolk County Corbett, judge. R. A. Cutter and A. P. Teele, both of Boston, for petitioner.
W. Rand, of Boston, for respondents George L. De Blois and others.
M. B. Frankel, of Cambridge, for respondent Brookline Trust Co.
On September 1, 1858, the Commonwealth of Massachusetts conveyed to George Goss and Norman C. Munson a parcel of land having an easterly frontage of one hundred and twelve feet on Arlington Street at the corner of Newbury Street, opposite the Public Garden, and running back to the westward one hundred and fifty-four feet, between Newbury Street and a passageway sixteen feet wide. Certain restrictions were imposed upon the land by the deed, but these are not now material. On the same day, Goss and Munson conveyed the same property to ‘ Marshall S. Perry, Samuel Cabot, Jr., Edward H. Clarke, Physicians and Francis E. Parker Esquire, all of said Boston,’ subject to the same restrictions.
The four grantees divided the eastern or front part of the land, running back westerly one hundred and four feet from Arlington Street, into four lots of unequal width on Arlington Street but all of the depth of one hundred and four feet. Each of the grantees obtained sole ownership of one of these lots by deed of release and quitclaim from the other three covenants, dated October 18, 1858, and on each lot a private residence was erected. These deeds left the four persons named holding as tenants in common the remaining or westerly part of the land, fifty feet wide on Newbury Street and the passageway, and having an easterly side line one hundred and twelve feet long identical with the combined westerly or rear lines of the four lots just mentioned. Title to this remaining land on Newbury Street has now passed to the petitioner, which seeks to register as appurtenant to it equitable easements or restrictions over the four lots just mentioned, which, it is contended, were created by the four deeds of release and quitclaim by which said lots passed into individual ownership.
Each of those deeds conveyed one of the four lots fronting on Arlington Street, subject to the restrictions imposed by the deed of the Commonwealth ‘ and to the further restriction that no building or part of any more than twelve feet high above the level of Arlington Street, shall be erected within thirty feet of the Westerly boundary of the released premises; but the erection of any such building contrary to the last proviso shall not subject the Releasee, his heirs or assigns, to a forfeiture of his or their estate in said land, but such erection shall be conclusively deemed a nuisance, for which the Releasors, their heirs, representatives or assigns may have remedy by due process of law, or may at their option, enter or send agents on said land and remove and abate such nuisance, at the expense of the Releasee, his heirs or assigns, without being held responsible for any manner of trespass therefor.’
Even if equitable restrictions rest on the specific performance of contracts [ Bailey v. Agawam National Bank, 190 Mass. 20, 23, 24, 76 N.E. 449,3 L.R.A. (N.S.) 98, 112 Am.St.Rep. 296; Codman v. Bradley, 201 Mass. 361 368, 87 N.E. 591; Childs v. Boston & Maine R. Co., 213 Mass. 91, 94, 99 N.E. 957,48 L.R.A. (N.S.) 378], we assume without deciding that the fact that the contracts contained in the several deeds, if made for the benefit of the Newbury Street lot, would have the same person as obligor and one of the obligees, would not prevent the specific enforcement of the restriction in equity. Cole v. Reynolds, 18 N.Y. 74; McMahon v. Rauhr, 47 N.Y. 67, 71, 72; Pelton v. Place, 71 Vt. 430, 435, 46 A. 63; Warren v. Stearns, 19 Pick. 73; Bemis v. Converse, 246 Mass. 131,...
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