Attorney General v. Algonquin Club

29 N.E. 209, 155 Mass. 128, 1891 Mass. LEXIS 35

Opinion

Holmes, J.

We express no opinion as to whether the restrictions in the Commonwealth’s deeds apply to foundations under ground, because we are of opinion that the decree, properly construed, does not purport to require foundations underground to be removed. The words, “ the said inner bays with the foundation walls sustaining the same . . . are to be removed,” are limited by the words “ so that the entire space . . . shall be on the same face as the main front wall,” which declare the end, and the only end, to be accomplished. To remove all doubt, the decree may be modified by inserting, after “ foundation walls sustaining the same,” the words “if any above the surface of the ground.”

It is quite true, and it fairly is to be inferred from the report and plans, that at the hearing on the merits no evidence was taken, fact found, or argument made as to the foundations, and we should be slow to read the decree as embracing other projections than those brought to the attention of the court at the proper time. The defendant is so far justified in its appeal, that there was perhaps reasonable ground to apprehend that the decree had a more extensive meaning. But there is nothing in the present situation or in the defendant’s past conduct to make the granting of delay proper. We shall allow the time allowed by the original decree, three months from the date of the re-script, and the decree of the full court. We perceive no reason why costs should not follow the event. Decree affirmed.