Ware v. Smith

• Decision Date: 31 March 1892
• Citation: 156 Mass. 186,30 N.E. 609
• Parties: WARE v. SMITH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

156 Mass. 186

30 N.E. 609

WARE v. SMITH.

Supreme Judicial Court of Massachusetts, Suffolk.

March 31, 1892

COUNSEL

D.E. Ware, for plaintiff.

S Hoar, for defendant.

OPINION

MORTON J.

Even if we adopt the construction of the restriction in the deed from the petitioner to Waterman for which the former contends, we do not see that it will help him. That deed was made and delivered in June, 1874. Within a month or two after the conveyance, Waterman built a dwelling-house on the south-easterly portion of the lot. Within a year or two after that he built another dwelling-house on the north-westerly portion of the lot. Waterman conveyed the south-easterly portion of the lot, with the dwelling-house, to one Caroline M. Barnard in fee-simple, and in 1885 it was conveyed, with the dwelling-house, to the defendant, also in fee-simple. Before this the north-westerly portion had been conveyed, with the dwelling-house, to one Trull. The deeds of these two parcels were subject to the restrictions in the deed from the petitioner to Waterman. About November 1, 1887, the defendant proposed to move her house onto a lot near by belonging to her husband, intending to erect a new and better house on its site. The plaintiff was informed of her purpose, and expressed his approval of the change, and the defendant went on and moved the house. After it was moved the defendant received from the plaintiff a notice claiming that, under the restrictions in his deed to Waterman, only one dwelling-house could be erected on the land therein described, and insisting that her lot should not be occupied by another dwelling-house. Up to this time, although the plaintiff lived near by and saw the two dwelling-houses while being built and knew of the occupation of them, and of changes and repairs made by the defendant, he had never made any objection to the erection or maintenance of either of them. Before receiving this notice, the defendant had made a contract with one Lambertson to remove the old house and build a new one, the whole to be done for a round sum, and at the time when the notice was received by the defendant, Lambertson was proceeding with the work of building the new house. The bill in equity in this case was filed November 23, 1887, and at that time no part of the house had been erected, though post-holes had been dug for the new building, and the timber had been partly framed, and some of it was lying on the...