Goulding v. Phinney

De Courcy, J. The plaintiff owns a lot on Massasoit Avenue in the town of Oak Bluffs adjoining the lot of the defendant. Both derive title from the Oak Bluffs Land and Wharf Company, through intervening parties. Among the restrictions contained in the original deeds from the company, and referred to in all the mesne conveyances, is this: “No building shall be erected within ten feet of the front line, nor within five feet of the side lines of said lot.” In 1916 the defendant built an addition to her house which admittedly comes within five feet of the side line. This suit was brought to compel the removal of the same. Restrictions in the original deed of the company were passed upon by this court in the cases of Hopkins v. Smith, 162 Mass. 444, and Sayles v. Hall, 210 Mass. 281. While the particular provisions considered in those cases were not the same as that here involved, it is clear that this restriction with regard to the set-back upon the side lines of the lots was also imposed as part of a general scheme for the development of a residential neighborhood. It is not merely a legal restriction for the benefit of the company alone, but was inserted in the deeds for the benefit of purchasers from the company and their grantees, and can be enforced in equity by and against such grantees. The plaintiff’s right to enforce it was not affected by the deed to the defendant dated September 22, 1916, by which the company purported to release its rights; the owners of the other lots not assenting thereto. Hopkins v. Smith, supra. The finding of the master, that “the character of the neighborhood has not changed from that of a residential section,” renders inapplicable the doctrine of Jackson v. Stevenson, 156 Mass. 496. See Riverbank Improvement Co. v. Chadwick, 228 Mass. 242, 247. [414] McArthur v. Hood Rubber Co. 221 Mass. 372, which is relied on by the defendant, was a suit to quiet title; the bill was taken pro confessa as to all the defendants except those who assented in writing to a decree declaring the restrictions to be no longer in force; and as was stated in the opinion, “The facts alleged in the bill show an even more fundamental transformation of the neighborhood than in Jackson v. Stevenson.” The master also finds, “The restriction as to distance from side lines has been quite generally disregarded and violated on Massasoit Avenue and upon lots in this vicinity.” But the plaintiff’s right to relief from a violation of the restriction which directly affects her lot, was not forfeited by a mere failure to object to similar violations by some others in the neighborhood. Bacon v. Sandberg, 179 Mass. 396, 399. Evans v. Foss, 194 Mass. 513, 517. Nor is the plaintiff precluded by loches. She “objected to the erection of the building and notified and requested the defendant not to erect said building, and took, as soon as possible, action to assert her rights.” Finally it is argued that the plaintiff is not entitled to relief because she has violated the same restriction, and so comes into court with unclean hands. This argument is based upon the finding that for some years the plaintiff maintained an out-building within five feet of her side line. But it further appears that the defendant not only made no objection thereto, but herself maintained a similar building on her premises, within the restricted area. And when the water system was put in, and the necessity for these structures ceased to exist, both of them were taken down. These facts plainly distinguish the case from Loud v. Pendergast, 206 Mass. 122, where a portion of the plaintiff’s main house, bay window, piazza and steps were within the restricted area even at the time of the trial. Bacon v. Sandberg, supra. In the opinion of a majority of the court the decree of the Superior Court should be affirmed, with costs. Ordered accordingly.