Bennett v. Newell

Wait, J. This is an appeal from a decree of the Superior Court restraining interference with rights of way and of drainage claimed by the plaintiffs over premises of the defendants. The evidence is reported. The proper determination depends upon the interpretation to be given to the language of the deeds to the plaintiffs creating the easements, and providing that they should continue only so long as a building which, on June 14, 1920, stood on the dominant estate fronting on Bellingham Place in Boston “stands and remains substantially in its present condition”; and the decision whether, as matter of fact, they had ceased to exist when the bill was brought, because the building had been changed substantially and no longer remained in that condition. There is no dispute that the building still stands. In June of 1920 it was a wooden frame building in dilapidated condition. A basement door opened upon the level of the rear of the premises on West Cedar Street, now owned by [130] the defendants. Another door two floors higher opened upoú the level of Bellingham Place. The building extended twd stories above Bellingham Place. In the basement story there was a toilet. On the next floor was a sink. On the floor above there was another sink. These with the appropriate fixtures of a period fifty years earlier than 1920 were the only water supply fixtures of the building. It had generally been used for two families; but, occasionally, had been occupied by a large single family. At the moment of the grant, it was used as a studio and for storage by an artist who sublet part of the house. The condition of the plumbing was such that the flow of water from the uppermost sink siphoned the traps of the fixtures on the lower floors and thereby rendered the house uninhabitable for one with a keen sense of smell. The windows and sashes were broken, the chimney was unsafe, the clapboards were loose and broken. The house needed renewed plastering and painting. The roof leaked. The frame work, however, was sound although two new floor timbers and a new wall on the Bellingham Place side were needed. While he remained owner of the servient premises, the grantor of the easements in question himself prepared the drain and the passageway to be used. He sold the servient estate in 1921 to the defendants’ predecessors in title. In 1920 the dominant premises were worth about $2,500. In 1927, the building was repaired and refitted to render it more comfortably inhabitable at an expense of about $4,000. No change was made in its height, length or breadth, or in its structure other than putting in a partition for a bathroom, rebuilding the wall on Bellingham Place, and substituting two beams in a flooring. The old plumbing was taken out, and new substituted. This added materially to the fixtures. Set tubs, a new toilet, new sinks, were introduced. But the drain pipe was not changed. The new appliances did not require a larger sewer pipe than the one laid by the creator of the easement of drainage. The roof was repaired. Windows and sashes were repaired or replaced. New clapboards were put on where needed. The chimney was rebuilt and, in places, a new casing was made. The plastering was [131] renewed. The place was repainted. As a result, a somewhat ruinous and undesirable house became a respectable and comfortable residence. The judge, who took a view of the premises, ruled and found, however, that the building remains substantially in its condition of June 14, 1920. He made a decree that the easements had not come to an end; and restrained interference with them. The defendants contend that the finding is wrong in fact and the ruling erroneous in law. St. 1907, c. 550, § 13, as amended by Spec. St. 1915, c. 352, § 3, so far as here material provides that “No alteration or repairs of a wooden building within the building limits [of Boston] shall be made without a permit from the commissioners, . . . nor shall a permit for alterations or repairs be granted if the estimated cost of the proposed alterations or repairs exceeds one half of the cost of a like new building.” This was the law in force at the date of the grant of these easements. The defendants contend that the language of the deed creating the easements must be construed with this law in mind. This contention is sound. Haven v. Foster, 9 Pick. 112, 128. Nevertheless there was here no direct evidence that the locus was within those building limits, nor any evidence of the cost of a like new building. No permit was obtained except for the new partition for the bathroom and the lining of the flue; but all the work was done "under inspection from the building department of the city. The evidence does not require a finding that what was done was in violation of the statute, or within what must be understood to be changes regarded as substantial by parties having the statute in mind. No greater burden is placed upon the servient estate in consequence of the changes. The word “substantially” should be given the meaning “really or essentially” attributed to it in Commonwealth v. Wentworth, 118 Mass. 441, 442. There has been a change; but in its essential characteristics of structure, use, and adaptability the building remains a wooden frame building adapted to use by two families, with new plumbing which does not require larger outflow piping than was provided for the old. The grantor [132] measured the burden on the servient estate when he put in the pipe for the sewage. See Naumkeag Steam Cotton Co. v. American Glue Co. 244 Mass. 506, 508. The amount of expenditure is not the sole measure of essential change. The judge was right in holding the requests 4, 5, 6, 7 and 8 to be immaterial in view of his findings. Evidence of conversation between the original parties to the grant was clearly incompetent to prove the meaning of the words used. Owners subsequent to them can be affected only by the language of the deeds. There is nothing ambiguous about it. We understand no reliance was placed by the trial judge upon such evidence offered and we disregard it in passing upon the evidence reported. Nothing requires finding that the grantees undertook to let the building fall to pieces after June 14, 1920, or that the grantor and his successors in title could fairly so interpret the grant. It follows that entry must be made Decree affirmed with costs.