Wilson v. Middlesex Co.

De Courcy, J. This is a petition to the Land Court for registration of the title to a parcel of land situated at the corner of Central and Hurd streets in Lowell. The question raised by the [229] exceptions is whether the title should be registered free from certain conditions or restrictions originally imposed thereon. The land in question, which abuts on the southerly side of Hurd Street, and is a portion of the premises described in the petition, was formerly part of a large tract owned by the respondent Middlesex Company. It was conveyed on September 1, 1835, by said company to John Mixer and John Wade, Jr., predecessors in title of the petitioners, by a deed which contained the following: “But this conveyance is made on the express condition that no building shall ever be erected on the above described premises nearer Hurd Street than the line of the fronts of the other buildings on the south side of Hurd Street.” The parties have agreed that at the date of this deed the front line of said buildings was about eighteen feet from the southerly line of Hurd Street. By a deed dated April 20, 1839, the Middlesex Company conveyed to said Mixer and Wade (in addition to other rights not here in question) all the grantor’s right, title and interest in said eighteen foot strip bounded northerly by Hurd Street. After the description of this strip appears the following language: “said Mixer and Wade their heirs and assigns shall forever have the right to use and improve said last described piece of land as a garden or yard or passage way over which to pass and repass to and from their said premises & said Hurd street with the privileges thereto belonging and the right to enclose the same with a fence out as far on Hurd street as as [sfc] the northerly line of the front of the fence now standing in front of Jesse Fox house provided however that said Mixer and Wade shall never erect any building thereon, and said Mixer and Wade their heirs & assigns shall forever have an easement in and over said Hurd street.” It is set forth in the agreed facts that “ every lot on the southerly side of Hurd Street between Central Street and George Street, except the lots now owned by the Middlesex Company, was originally conveyed by the Middlesex Company by deeds containing the same or a similar provision to that contained in the original deed from the Middlesex Company to Mixer and Wade, dated September 1, 1835;” and that “the Middlesex Company is now the owner of two lots on the southerly side of Hurd Street between Central and George Streets.” On the foregoing facts the petitioners contend that the pro [230] visions in said deeds of September 1, 1835, and April 20, 1839, created a common law condition, with a right of reverter in the Middlesex Company if Mixer and Wade, but not their successors in title, should erect any buildings thereon. So far as the first deed is concerned, it was ruled by the Land Court, apparently on the agreement of all parties, that its language created a common law condition. The court ruled, however, that while said release of the eighteen foot strip had the effect of terminating the company’s right to enter upon any part of the land first conveyed for a breach of said condition, it did not create a new common law condition limited to Mixer and Wade and not extending to their heirs and assigns, but that the provision in the later deed that no building should be erected on said strip must be construed as creating an equitable restriction thereon in favor of the company; and that it also constitutes a restriction for the benefit of such lots on Hurd Street as were conveyed by said company with similar provision. As to the Middlesex Company: The words in the deed of 1835, taken by themselves, were undoubtedly sufficient to create a condition as between the grantor and grantees. Clapp v. Wilder, 176 Mass. 332. See Welch v. Austin, 187 Mass. 256, 258. But when they are considered in connection with the language in the release of 1839, and in the light of the attendant circumstances, there appears ample warrant for the conclusion of the Land Court, that the intent of the parties was to create an equitable restriction and not an estate upon condition. In Whitney v. Union Railway, 11 Gray, 359, there was a provision that if the grantee, his heirs or assigns, should make any of specified objectionable uses of the premises the grantor or her successors in title might enter, and abate the same; and it was held to create an equitable restriction. In Skinner v. Shepard, 130 Mass. 180, the conveyance was “subject to the condition” that a certain building line be maintained: and it was construed as having effect only as a restriction. And in Codman v. Bradley, 201 Mass. 361, where the language was in terms of a covenant by the grantees, the court said (page 368): “It is not important to determine whether the instrument created a legal estate in the five lots, or precisely what legal estate it created, if any. It created a right enforceable in equity ... in the nature of an easement, even if it rests on no broader principle [231] than that equity will enforce a proper contract concerning land, against all persons taking with notice of it.” See also Wilson v. Massachusetts Institute of Technology, 188 Mass. 565, 581. As to the respondent O’Heir: Apart from the question whether the 1835 deed created a technical condition as between the Middlesex Company and Mixer and Wade, and the effect of the release of 1839 on the rights of that company, the Land Court was fully warranted in finding on the evidence that the restrictions were designed to carry out a general scheme of improvements for the benefit of the several lots conveyed by the company on the southerly side of Hurd Street, and that O’Heir consequently has a right or interest in the nature of a servitude in the petitioners’ lot which was conveyed subject to the restriction. Parker v. Nightingale, 6 Allen, 341. Hano v. Bigelow, 155 Mass. 341. Hopkins v. Smith, 162 Mass. 444. Allen v. Barrett, 213 Mass. 36. The petitioners further contend that even if the deeds created an equitable restriction only, it was extinguished wholly or pro tanto by the use made by the petitioners of the restricted area. The stone stairway leading to the cellar of the building dn the petitioners’ land, with a metal railing four feet above the surface, was not such a “building” as was prohibited on the restricted area. Nowell v. Boston Academy of Notre Dame, 130 Mass. 209. And even if its maintenance were a breach of the restrictive provision, the effect at most would be to extinguish that provision only to the extent that the stairway and railing had invaded it. Putnam v. Bowker, 11 Cush. 542. It would still remain effective to require a setback of the buildings on Hurd Street, as contem-' plated in the plan of development of the Middlesex Company.' And this equitable restriction was for the benefit not only of the remaining lots of Middlesex Company, but also to secure the advantages of light, air and prospect to the purchasers of other lots for whose benefit the general scheme of restrictions existed, as found by the Land Court. Again the addition to the permanent building of the petitioners, which was used as a lunch room and for other purposes, and was within the restricted area, was removed in 1920 in pursuance of the written agreement between the petitioners and the Middlesex Company, after the company had brought a writ of entry to recover possession of the property because of the erection of said addition. While the maintenance of said structure for more [232] than twenty years affected the rights of the respondent O’Heir, the purpose and effect of said agreement was to leave the petitioners and the Middlesex Company in the same position as they were in before the structure was erected. Putnam v. Bowker, supra. Ball v. Allen, 216 Mass. 469. It cannot be ruled as matter of law that such encroachment of this seven by fourteen feet area was inconsistent with the existence of the restriction, as in Smith v. Price, 214 Mass. 298. And the further contention of the petitioners, that the restriction in question was extinguished by the indenture of October 27, 1873, and the releases given in pursuance thereof, cannot prevail. By these instruments a strip of land six feet wide, and next northerly of the original house front line, was released from the prohibition against building thereon. The petitioners or their predecessors in title were not parties to said indenture. As stated by the Land Court: “it is impossible for this court to say that the scheme of restrictions so far as the petitioners’ land is Concerned no longer exists in any form. McArthur v. Hood Rubber Co. 221 Mass. 372. Riverbank Improvement Co. v. Chadwick, 228 Mass. 242.” Accordingly we find no error in the rulings that the eighteen foot strip of the petitioners’ land, adjoining Hurd Street, is subject to the restriction that a building shall never be erected thereon, as set forth in said deed to Mixer and Wade, dated April, 1839; and that the restrictive provision in the deed of September 1, 1835, “constitutes a restriction for the benefit of those said other lots on the southerly side of Hurd Street which were conveyed by the Middlesex Company with a similar provision restricting the erection of buildings thereon with the exception that so much of the petitioners’ land as was covered by the above described structure which was erected and maintained within the restricted area for a period exceeding twenty years is no. longer subject to such restriction in favor of said other lots.” The foregoing disposes of all the exceptions argued by the petitioners. Exceptions overruled.