Tobey v. Moore

• Decision Date: 24 February 1881
• Citation: 130 Mass. 448
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Edward S. Tobey & others v. Charles Moore

130 Mass. 448

Edward S. Tobey & others v. Charles Moore

Supreme Court of Massachusetts

February 24, 1881

Argued January 15, 1880

Middlesex. Bill in equity, filed December 11, 1879, to restrain the defendant from putting up a building on his land, situated on the east corner of Main Street and Trowbridge Street in Cambridge. The case was heard, on the pleadings and proofs, by Morton, J., who reported the following case for the consideration of the full court:

All the parties to the suit derive their title, by mesne conveyances from Charles C. Little and James Brown, to whom, in 1850 Richard H. Dana conveyed four lots of land, including the lands now owned by the plaintiffs and the defendant, bounded on Main Street about three hundred and fifty feet, and extending from Ellery Street on the east to Trowbridge Street on the west, which lots were one hundred and fifty feet in depth, and also fifteen other lots in the neighborhood, by a deed describing each lot by metes and bounds, and as numbered on a plan, and containing these clauses, following the habendum:

"Provided nevertheless, and the grant hereby made is subject to the following restrictions and conditions, viz.: that the said grantees, their heirs or assigns, shall never erect any building or part thereof which shall be used for the trade or calling of a butcher, currier, tanner, varnish-maker, ink-maker, tallow-chandler, soap-boiler, brewer, distiller, sugar-baker, dyer, tin-man, working brazier, founder, smith, or brickmaker, or for any nauseous or offensive trade whatsoever; nor occupy such lots for these or any other purposes which shall tend to disturb the quiet or comfort of the neighborhood; and that no building or part of any, and no fence over six feet high, shall be erected within eight feet of said streets; and that no steam-engine shall be used on the premises, and no livery stable be kept thereon. But the erection or use of any such building, or the occupation of the land hereby conveyed, contrary to these provisos or any of them, shall not subject the said grantees or their heirs or assigns to a forfeiture of their estate in said land; but such erection or occupation shall be conclusively deemed a nuisance, for which the grantor, his 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 grantees, their heirs or assigns, without being held responsible for any manner of trespass therefor."

All the deeds through which the parties respectively claim title from Little and Brown are expressed to be subject to these conditions and restrictions. And the deeds made by Dana to other persons of many other lots of land in the neighborhood, and shown upon the same plan, contain similar clauses.

The defendant is now erecting a building, intended for shops for the sale of groceries and provisions, within less than eight feet of the line of Trowbridge Street, and within less than eight feet of the line of Main Street as now located and used. In 1868, the city council of Cambridge, for the purpose of widening Main Street, took a strip from the southerly side of the defendant's land, twelve and 85/100 feet wide at the corner of Trowbridge Street, and one and 5/100 feet wide at the southeasterly corner of the lot.

There was also evidence reported tending to show that the restrictions were imposed in pursuance of a general scheme of improvement, which it is now unnecessary to state.

The judge reserved for the consideration of the full court the questions whether the bill could be maintained to restrain the defendant from putting up any building on his land nearer than eight feet from the line of Main Street as widened, and...