Attorney General v. Gardiner

Gray, C. J. The Commonwealth, in devising the scheme of improvement of the Back Bay lands, and in executing the indenture with the Boston Water Power Company for the purpose of carrying that scheme into effect, acted in a twofold capacity: as the proprietor of lands which it held and might sell, as an individual might; and as the sovereign power, authorized to lay out highways for the benefit of the public. The provisions and restrictions contained in the indenture, against building on the front part of the lots, are manifestly intended not merely to enhance the market value of the lands, but also to increase the symmetry and beauty of the highways laid out through them. The Commonwealth may therefore enforce these provisions and restrictions, against all persons bound by them, by information in equity in the name of the. attorney general. Story Eq. PL §49. The terms of the indenture, and of the deeds under which the defendant acquired his title, equally restrict and prohibit the erection of any building within twenty feet of the line of Commonwealth Avenue. The indenture expressly stipulates that no part of any building shall be within the distance of twenty feet — 500 — from the front line of the lots, with a proviso allowing the erection, within the reserved space, of nothing but fences on the front line of the lots, and “steps and other usual projections” from the fronts of the buildings. The deed from the Commonwealth to Hooper, subject to all the stipulations, agreements and restrictions contained in which the defendant took his title, is declared to be made upon the stipulation and agreement that the front wall of any building erected on the premises shall be set back twenty feet from Commonwealth Avenue, “ provided that steps, windows, porticos and other usual projections appurtenant thereto are to be allowed in said reserved space of twenty feet.” The mere filling up of the reserved space to the height of three or four inches at the line of the sidewalk, sloping upwards to the height of a foot or less at the front line of the houses, to prevent the water from being thrown towards the building — as found by the report to have been done upon other lots bounding upon the avenue — could not be deemed a violation of any of these stipulations or restrictions. But the structure erected by the defendant within the reserved space, to a height of three feet above the existing level of the street, alleged in the answer to be made for the accommodation of coal-bins, and stated in the report to be “ what is known in architecture as a terrace,” is no part of the defendant’s dwelling-house, nor a projection from or appurtenant to it, but is of itself a building, within the meaning of the restrictive clauses both in the indenture and in the deeds. And so much of it as rises above the usual line of the reserved spaces in front of the houses on Commonwealth Avenue must therefore be removed within a reasonable time. Linzee v. Mixer, 101 Mass. 512. Tallmadge v. East River Bank, 26 N. Y. 105. Clark v. Martin, 49 Penn. St. 289. No question of loches appears to have been made at the hearing, or is reserved by the report, or, upon the facts found, could avail the defendant. Decree for the plaintiff.