Stone v. Pillsbury

Allen, J. , The defendants contend, in the first place, that the restriction was not intended to apply to the house already upon the lot, but only to houses which might be built in the future. If this were so, the plaintiffs would be without remedy if the house were to be considerably changed in its interior construction, and converted into a hotel for transient guests, a public eating-house, a liquor shop, or a factory. We should be slow to give this construction to the deed. But on other grounds we do not see our way clear to give to the plaintiffs the relief which they seek. The house was built and occupied as a single dwelling-house by its original owner. Since then, it has not been altered in construction, either inside or outside. So far as its mode of building goes, it remains a single dwelling-house. We do not determine whether any possible change in the manner of its use would be a violation of the restriction. It might, for example, be wholly given up as a residence, and used only for some purpose of trade. But its use as a residence continues, with some approach also towards a use as a private hotel or a private hos [337] pital. The words of the restriction are not very strong. They do not say that no building upon the granted land shall be used for any other purpose than as a private residence for a single family without boarders ; or even that no building shall be used otherwise than as a single dwelling-house. The provision, omitting words not now material, is that no building other than one single dwelling-house shall be maintained on said lot. So far as the material structure is concerned, no other building is maintained there. No doubt the present use is such as might reasonably have been provided against, if it had been anticipated. But the words are not plain. While a reasonable interpretation is to be given to them, doubts are to be resolved in favor of the grantee in the deed. Saltonstall v. Long Wharf, 7 Cush. 195, 201. Simonds v. Wellington, 10 Cush. 313. Thayer v. Payne, 2 Cush. 327, 331. Johnson v. Jordan, 2 Met. 234, 240. Amidon v. Harris, 113 Mass. 59, 65. Grubb v. Grubb, 101 Penn. St. 11. In some decided cases the limitation upon the use of the building has been clearly expressed. Of these, Dorr v. Harrahan, 101 Mass. 531, is an example. In Gillis v. Bailey, 21 N. H. 149, the limitation upon the use was clearly to be inferred from the detailed recital of the object of imposing the restriction. In the present case the inference is less clear, and, the building itself ' being maintained as a single dwelling-house, without structural change, we are unable to say that the introduction of the use which is described is a violation of the restriction. See Hutchinson v. Ulrich, 145 Ill. 336. The evidence as to the meaning of “single dwelling-house” amongst real estate men was rightly excluded, it being limited to a particular class which, so far as appears, did not include the original or subsequent purchasers of this property. Decree affirmed.