Cogliano v. Lyman

Massachusetts Supreme Judicial Court

Cogliano v. Lyman

348 N.E.2d 765, 370 Mass. 508

CourtMassachusetts Supreme Judicial Court

DecidedJune 15, 1976

StatusPublished

Cited by4 cases

This text of 348 N.E.2d 765 (Cogliano v. Lyman) 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

Cogliano v. Lyman, 348 N.E.2d 765, 370 Mass. 508 (Mass. 1976).

Pincite

Opinion

Kaplan, J.

This was a suit in the Land Court commenced pursuant to G. L. c. 240, §§ 10A-10C, by the petitioners, owners of land burdened by a restrictive covenant, *509 to be relieved of the restriction in accordance with the provisions of G. L. c. 184, § 30. Named as respondents were the owners of certain abutting land, one of whom was the grantor who imposed the restriction and from whom the petitioners derive their titles. After conducting a trial, without a jury, on pleadings which need not be particularly described, 3 and after taking a view of the locus, a judge of the Land Court entered a final decree dismissing the petition. The petitioners filed their appeal in the Appeals Court, whence it was transferred to this court under G. L. c. 211A, § 10 (A). We find no reason to disturb the result.

We are assisted by the careful findings, ruhngs, and order for decree by the trial judge, of which the facts found were adopted by the judge as his report of material facts. The testimony and exhibits at trial, available to us in a transcript, amply support the judge’s findings. We do no more than restate them as far as needed to consider the appeal.

In 1956 the respondent Elizabeth C. Lyman was the owner of the land, now southerly of Route 128, marked with her name on the appended “Decision Plan,” as well as the land opposite, now northerly of Route 128, comprising the parcels numbered 2, 3, 4, and 5. The entire property, lying in Ganton, Massachusetts, was zoned as Single Residence District A. Route 128 was being relocated at the time to pass between the two portions of the Lyman property. This was the occasion or reason for the conveyance to be described.

In January, 1956, Mrs. Lyman conveyed the land comprising the parcels mentioned, lying northerly of Route 128, some twelve acres in all, to the brothers Joseph C. Cogliano and Frank C. Cogliano, as tenants in common. The deed, signed by the parties, contained the following restriction: “Each of the Grantees covenants for himself and his heirs, executors, administrators, successors and assigns that for thirty (30) years from the date of re *510 cording of this deed the premises herein conveyed shall be used only in accordance with the Zoning By-Laws of the Town of Canton presently in force and applicable to said premises, regardless of any changes in said By-Laws which may hereafter be made.” 4 The deed was delivered on the express understanding, contained in a letter of counsel, “[t]hat the Coglianos are buying this property for the purpose of using it as a nursery and a site for not more than two houses, and with no present intention of using it for any other purpose,” and the further express understanding that the Coglianos would sell an acre at the corner of Green Street and old Route 128 (parcel 5) to Paul F. Nocka and Violet Nocka subject to the same restriction. The Nockas were already owners of parcel 1 on which stood the old colonial house called the General Crane House.

Mrs. Lyman’s purpose in the transaction, as found by the judge below, was “to preserve the residential character of the neighborhood and to protect the General Crane House occupied by the respondents Nockas.”

As had been agreed, the brothers Joseph and Frank conveyed parcel 5 to the Nockas in a deed signed by the parties. 5 They conveyed parcel 3 (30,000 square feet) to Frank C. and Grace J. Cogliano, husband and wife, and, later, parcel 2 (55,240 square feet) to Joseph D. and Eleanor E. Cogliano, husband and wife, and a residence was built on each of these parcels. The brothers deeded the remainder of the land conveyed to them by Mrs. Lyman, that is, parcel 4, to themselves and Rose Cogliano as trustees of the Royall Trust. The Coglianos maintain a tree and plant nursery on parcel 4 and “have prospered *511 in the nursery business at its location,” which is a favorable one for the purpose, and have bought other land to supplement the operation.

Over the years to the time of trial the Lyman, Cogliano, and Nocka properties have remained in the condition contemplated by the 1956 transaction. External developments affecting the locus have been as follows. The traffic on Route 128 has increased, reaching a level of about 93,180 vehicles a day. 6 Some industrial building has occurred in the area easterly of the Coglianos and the Nockas and northerly of Route 128, zoned as a Limited Industrial District. First, in 1957, Instron Corporation constructed a 55,000 square foot building, near the Route 128-Route 138 interchange, for the manufacture of electronic components; this is not visible from the Coglianos’ or the Nockas’ property. Second, in 1969 Boston Envelope Company built a 163,000 square foot building with parking facilities for 300 cars adjacent to the nursery; the building is visible from the Coglianos’ property and parcel 5, but not from the Nockas’ house which is shielded by a hill rising between it and the building. 7 Third, around the time of trial in 1973 Boston Mutual Life Insurance Company was building a four story, 130,000 square foot building in the area between the other two industrial buildings. Apparently this would be visible as just indicated for the Boston Envelope building. 8 The last development to be mentioned *512 is that the area comprising the five parcels has been zoned, more restrictively than before, as Single Residence AA: this calls for a minimum area of 45,000 square feet with 200 feet lot width, as compared with 30,000 square feet and 150 feet, respectively, for the A classification. A nursery is permitted in either classification.

The judge ruled on familiar principles, which are not challenged, that Mrs. Lyman as grantor was a proper party to enforce the restriction against those who took from the Cogliano brothers, but that the Nockas were not so positioned because there was no “common scheme.” 9 The latter ruling we do not review, as no appeal or argument on this point is before us. Reaching the merits, the judge applied the several criteria of G. L. c. 184, § 30, and concluded that adequate reason had not been shown why the restriction should give way.

The case taken as a whole presented a not unfamiliar problem. Had the neighborhood deteriorated or changed its character to such an extent, from the time the restriction was laid on to the time of trial, that enforcing the restriction according to its terms would be merely quixotic — failing to serve the grantor’s original purpose and impeding present desirable and feasible uses? Examples of this sort are pictured in McArthur v. Hood Rubber Co., 221 Mass. 372 (1915), and Jackson v. Stevenson, 156 Mass. 496 (1892); and see the discussion in Blakeley v. Gorin, 365 Mass. 590, 603-607 (1974) (under G. L. c. 184, § 30).

Free access — add to your briefcase to read the full text and ask questions with AI