Beekman v. Schirmer

Braley, J. The defendant, who owns two lots of land on one of which he has built and occupies a dwelling house, was erecting on the other lot a greenhouse to be used exclusively in. connection with his home, when the plaintiff, an adjoining owner and householder, brought suit to restrain its erection on the ground that the greenhouse was prohibited by certain equitable restrictions created for the benefit and protection of the plaintiff’s estate. The trial court dismissed the bill without costs, and the case is here on appeal. [270] The parties derive title from a common grantor described in the respective deeds as the “Trustees of the Newton Boulevard Syndicate.” The declaration of trust gave the trustees exclusive control and management with full power to improve, survey or plot a large tract of land to be developed and sold for residential purposes, and to locate, lay out and grade streets, sidewalks, ways, parks, squares, “and to release lands therefor or for other purposes deemed by them expedient for the trust,” and “ to grant and acquire easements.” The record shows, and the presiding judge found, that conveyances were not made by any one plan of all the lands, but the trustees “ intended to retain a power in themselves to change their system of development; and, while restricting the several lots as they were granted, they intended to avoid granting power to the purchasers to prevent the imposition of different restrictions or to compel the imposition of identical restrictions on all lots in the entire tract.” The plaintiff’s deed, which is prior in time to the defendant’s title to both lots, and is the first sale of any of the lots shown on the plan bounded by Hobart, Monadnock and Wachusett roads, contains this provision in the granting clause: the trustees “ do hereby for the benefit of the land herein conveyed impose on the remaining land of said trustees, bounded southerly and easterly by Wachusett Road, westerly by Hobart Road, and northerly by Monadnock Road the following restrictions which shall remain in force for a period of twenty years from the date hereof, subject, however, to the rights of existing mortgagees, namely; no building shall be erected or placed thereon except private dwelling houses, adapted for the use of one private family only for each house, and the appurtenances thereto, including a private stable and garage for each of such houses; such dwelling houses shall cost above their foundations not less than five thousand dollars each.” While in their subsequent conveyances they imposed other restrictions, those who bought within the period of limitation, acquired title subject to the restrictions in the plaintiff’s deed. Hano v. Bigelow, 155 Mass. 341, 343. The deed to the defendant of the first lot where he built his house contained among other restrictions that “ not more than one single dwelling house, adapted to the use of one private family only, with such outbuildings, including a private garage and private greenhouse, but excluding any stable, as are commonly used in [271] connection with dwelling houses, shall be erected or placed on said land.” By a later deed he acquired the second lot, and in this deed the material restriction reads, “ that only a single dwelling house adapted to the use of one private family only, with such out buildings, including a private stable or garage, as are commonly used in connection with dwelling houses shall be erected or placed on the lot.” It is plain that if the mansion house were on this lot, a greenhouse to be used in connection with it would be an “ out building,” the erection and maintenance of which would not be a violation of the restriction just quoted. Commonwealth v. Intoxicating Liquors, 140 Mass. 287, 289. Blakemore v. Stanley, 159 Mass. 6. But the defendant’s holdings, even if separately purchased, constitute an entire estate which he can occupy and develop to the same extent and in the same way as if the unity of title had existed when he built the dwelling house, or he had acquired the whole tract under one deed which recited all the restrictions. The land, however, was “remaining land,” and therefore is subject to the restriction in the plaintiff’s deed previously stated, and the final question is, whether the greenhouse, even if used only in connection with the dwelling house, can be classed as among “ the appurtenances thereto.” The judge has found in substance that the greenhouse is not to be used independently, but as an adjunct of the dwelling house. The word “ appurtenances ” is not used in a technical sense. It is to be read with the restrictions in subsequent deeds of the trustees permitting the erection of out buildings including a private garage and private greenhouse, and with the facts that there are greenhouses on other lots, one at least having been built in the immediate neighborhood of the land in controversy. Clapp v. Wilder, 176 Mass. 332, 338. The whole restriction also shows that “appurtenances” relate to minor structures or buildings needful to a dwelling house when constructed and maintained in a residential environment calling for large expenditure and much luxury. If appurtenances include a private stable and a private garage which are out buildings connected with and incidental to the use and enjoyment of the dwelling house, a private greenhouse for the same general purpose also may be classed as an out building coming within the intention of the grantors when framing the restriction. Clapp v. Wilder, supra. [272] We are accordingly of opinion that “ appurtenances ” should be construed under such conditions to mean that which might become necessarily connected with the full and free use and enjoyment of the dwelling house whether it took the form of a private stable, or a private garage, or a private greenhouse. Ammidown v. Granite Bank, 8 Allen, 285, 291. Johnson v. Knapp, 146 Mass. 70. McShane v. Carter, 80 Cal. 310. Woodhull v. Rosenthal, 61 N. Y. 382, 390. Harris v. Elliott, 10 Pet. 25, 54. Sheets v. Selden, 2 Wall. 177, 187, 188. The decree should be affirmed. Ordered accordingly.