Clark v. Lee

Massachusetts Supreme Judicial Court

Clark v. Lee

70 N.E. 47, 185 Mass. 223, 1904 Mass. LEXIS 791

CourtMassachusetts Supreme Judicial Court

DecidedFebruary 27, 1904

StatusPublished

Cited by14 cases

This text of 70 N.E. 47 (Clark v. Lee) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Clark v. Lee, 70 N.E. 47, 185 Mass. 223, 1904 Mass. LEXIS 791 (Mass. 1904).

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Opinion

Lathrop, J.

In the defendant’s deed to the plaintiff’s grantor, it was provided that, on the defendant’s remaining land, lying southerly of the land conveyed, no dwelling or other house or building or any part thereof or projection therefrom should be built thereon within sixty-five feet of the easterly line of Walnut Street, or within fifteen feet of the southerly line of the premises conveyed; and that not more than one house and no house except a single detached dwelling house should be erected thereon. We regret that we have not been furnished with a copy of the deed, which should have been annexed to the bill, so that the exact language could be given; but we have stated the substance of the language used, as we gather it from the bill and answer.

It is admitted that the defendant has built his house in conformity with the language of the deed ; and the only complaint is that he has erected certain walls on his land, which it is said are in conflict with his covenant not to build, or are contrary to the restriction imposed by him on his remaining land.

We are of opinion that the covenant or restriction applies only to the house to be built upon the land, and not to a wall, even if the wall extends from the house into the restricted space. Such a wall as was here built extending from the house cannot be deemed to be “any part of, or projection” from, the house. These words evidently refer to bay windows or porches, or things of that nature.

That a wall cannot be held to come within the term “ building” is in our opinion conclusively settled by the cases in this Commonwealth. Thus in Truesdell v. Gay, 13 Gray, 311, it was said by Mr. Justice Bigelow: “ The word ‘ building ’ cannot [226]*226be held to include every species of erection on land, such as fences, gates or other like structures. Taken in its broadest sense, it can mean only an erection intended for use and occupation as a habitation or for some purpose of trade, manufacture, ornament or use, constituting a fabric or edifice, such as a house, a store, a church, a shed.” See also Nowell v. Boston Academy of Notre Dame, 130 Mass. 209, which seems to us conclusive of this case.

Bill dismissed.

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Lathrop, J.

In the defendant’s deed to the plaintiff’s grantor, it was provided that, on the defendant’s remaining land, lying southerly of the land conveyed, no dwelling or other house or building or any part thereof or projection therefrom should be built thereon within sixty-five feet of the easterly line of Walnut Street, or within fifteen feet of the southerly line of the premises conveyed; and that not more than one house and no house except a single detached dwelling house should be erected thereon. We regret that we have not been furnished with a copy of the deed, which should have been annexed to the bill, so that the exact language could be given; but we have stated the substance of the language used, as we gather it from the bill and answer.

It is admitted that the defendant has built his house in conformity with the language of the deed ; and the only complaint is that he has erected certain walls on his land, which it is said are in conflict with his covenant not to build, or are contrary to the restriction imposed by him on his remaining land.

We are of opinion that the covenant or restriction applies only to the house to be built upon the land, and not to a wall, even if the wall extends from the house into the restricted space. Such a wall as was here built extending from the house cannot be deemed to be “any part of, or projection” from, the house. These words evidently refer to bay windows or porches, or things of that nature.

That a wall cannot be held to come within the term “ building” is in our opinion conclusively settled by the cases in this Commonwealth. Thus in Truesdell v. Gay, 13 Gray, 311, it was said by Mr. Justice Bigelow: “ The word ‘ building ’ cannot [226]*226be held to include every species of erection on land, such as fences, gates or other like structures. Taken in its broadest sense, it can mean only an erection intended for use and occupation as a habitation or for some purpose of trade, manufacture, ornament or use, constituting a fabric or edifice, such as a house, a store, a church, a shed.” See also Nowell v. Boston Academy of Notre Dame, 130 Mass. 209, which seems to us conclusive of this case.

Bill dismissed.

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Bluebook (online)

70 N.E. 47, 185 Mass. 223, 1904 Mass. LEXIS 791, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-lee-mass-1904.

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