Easterbrook v. Hebrew Ladies Orphan Society

82 A. 561, 85 Conn. 289, 1912 Conn. LEXIS 127

• Court: Supreme Court of Connecticut
• Decided: March 7, 1912
• Status: Published

Opinions

Pkentice, J.

It is unquestioned that the plaintiffs have no right to the relief prayed for except as such right arises from a violation of the restrictive covenant running with the land contained in the deed of 1834, by the terms of which the grantors, the predecessors in title of all of the parties to this action, their heirs and assigns, covenant and agree that “neither they nor their heirs or assigns shall or will at any time hereafter erect or permit upon any part of any or either of the said twenty lots any livery stable, slaughter house, smith shop, forge, furnace, steam engine, brass foundry, nail, or other iron factory, or any manufactory of gunpowder, glue, varnish, vitriol, ink or turpentine, or for dressing, tanning, or preparing skins, hides, or leather, or any brewery, distillery, public museum, theatre, circus, place for the exhibition of animals or any other trade or business, dangerous or offensive to the neighboring inhabitants.”

The plaintiffs assert, and the defendant denies, that the latter’s proposed use and occupancy of its recently acquired land within the tract covered by said deed is one violative of this covenant. Here is presented an issue fundamental to the case, and one whose determination in favor of the defendant is necessarily fatal to the plaintiffs’ right of recovery, regardless of all other considerations. Its determination depends upon the language of the covenant defining the prohibited uses. It is clear that neither the purposes to which the defendant proposes to put its premises in the conduct of a home for orphans and the aged, nor the acts and things proposed to be done thereon in the conduct of the projected institution, are of such a character as to bring its use and occupancy of the property into the category of activities forbidden by special enumeration. It is equally clear that this use and occupation cannot be brought within the purview of the general descriptive language immediately following the specific enumeration as being that of a “trade.” Manifestly it cannot be brought under the ban of the covenant unless it is first of all to be regarded as a “business” within the intent and meaning of that word as therein used.

The word “business” is one which is used with widely variant meanings. It is used broadly to signify “that which busies, or engages time, attention, or labor, as a principal serious concern or interest.” Webster’s New International Dictionary. In this sense it embraces everything about which one can be employed. People ex rel. Parker Mills v. Commissioners of Taxes, 23 N. Y. 242, 244. It is often used in a much narrower sense to denote “that which occupies the time, attention, and labor of men for the purpose of livelihood or profit.” Bouvier’s Law Dictionary; Goddard v. Chaffee, 2 Allen (84 Mass.) 395; Harris v. State, 50 Ala. 127, 130. In this sense it signifies “ a calling for the purpose of a livelihood” or profit. Anderson’s Law Dictionary, 141. It is also used with various other shades of meaning, as with especial reference to mercantile or commercial activities, or to commercial or industrial enterprises, or as synonymous with trade. Webster’s New International and Century Dictionaries.

The term thus being one of ambiguous and uncertain meaning, it becomes necessary to determine, as best we may, the meaning in which it was used in this covenant. “The primary rule of interpretation of such [i. e. restrictive] covenants is to gather the intention of the parties from their words, by reading, not simply a single clause of the agreement, but the entire context, and, where the meaning is doubtful, by considering such surrounding circumstances as they are presumed to have considered when their minds met.” Kitching v. Brown, 180 N. Y. 414, 427, 73 N. E. 241. The controlling fact, when discovered, is the expressed intent. Intent unexpressed will be unavailing. In the discovery of the expressed intent there are certain accepted principles of construction to be observed.

One is, that the words used are to be taken in their ordinary and popular sense, unless they have acquired a peculiar or special meaning in the particular relation in which they appear, or in respect to the particular subject-matter, or unless it appears from the context that the parties intended to use them in a different sense. Hall v. Rand, 8 Conn. 560, 568; First Society of Waterbury v. Platt, 12 Conn. 181, 188; Moran v. Prather, 23 Wall. (U. S.) 492, 499; Hawes v. Smith, 12 Me. 429, 432.

Another is, that if the language of a restrictive covenant, when read in the light which the context and surrounding circumstances throw upon it, remains of doubtful meaning, it will be construed against rather than in favor of the covenant. Brown on Covenants Running with Land, 125; German v. Chapman, L. R. 7 Ch. Div. 271, 276; Clark v. Jammes, 87 Hun (N. Y.) 215, 217, 33 N. Y. Supp. 1020; Kitching v. Brown, 180 N. Y. 414, 427, 73 N. E. 241. Such covenants being in derogation of the common-law right to use land for all lawful purposes that go with title and possession, they are not to be extended by implication. Brigg v. Thornton, L. R. (1904) 1 Ch. 386.

Again, it is a recognized rule that where a particular enumeration is followed by general descriptive words, the latter will be understood as limited in their scope to matters and things of the same general kind or character as those specified in the particular enumeration, unless there is something to show a contrary intent. St. Joseph v. Porter, 29 Mo. App. 605, 608; Hickey v. Taaffe, 99 N. Y. 204, 209, 1 N. E. 685; Bailey v. Close, 37 Conn. 408, 411; Hudson v. Whiting, 17 Conn. 487, 490. When no such contrary intent appears, the general words will be construed with reference to the context, and the specific terms with which the general are associated in the context will control the meaning to be given to the more general expression used in their immediate connection. Pardee’s Appeal, 100 Pa. St. 408, 412.

It is apparent, from an examination of the instrument in its entirety, that the parties had it for their purpose to make the tract which they owned between them desirable and attractive for residences. It is equally obvious that it was intended that the instrument should embody all the measures which the parties regarded as necessary to effectuate the result sought to be secured. It is an exceptionally lengthy document, is drafted with uncommon precision, deals with a great variety of details, and unmistakably evinces unusual care and thought as respects both the matters to be provided for and regulated and the manner of that provision and regulation. It is impossible to read it and not come to the conclusion that it is the product of a thoughtful consideration of the situation and a solicitude to specifically and clearly embrace in its provisions all those regulations and restraints which at the time were deemed needful to accomplish the end sought.

It well may be that the foresight of these grantors nearly eighty years ago has not proved equal to the changed conditions of to-day, and that in the lapse of years it has developed that the provisions made in 1834 are inadequate to secure the results then sought after; but the restrictions of the instruments as they were made cannot be enlarged by implication or extended beyond their original intent in order that the general purposes of the covenanting parties may be effectuated under the new conditions. To make such extension would be to make a new contract for the parties in the place of one they did make. First Society of Waterbury v. Platt, 12 Conn. 181, 188.

Although the parties entertained the purpose of making the tract a desirable one for residential purposes, it is obvious that they did not contemplate measures which would compel it to be and remain an exclusively residential neighborhood. In other words, it was not regarded as a necessary condition to the accomplishment of the purpose in view that all trades and business should be barred. The ban was placed upon certain kinds of trades and business only. The provisions of the instrument which attempt a regulation of the uses to which the property might be put are few. They are confined to one that no building other than a two-story dwelling with or without wings should ever be erected on the front of twelve of the twenty lots, not including the defendant’s, and those back of a fixed line, and the restriction now under consideration.

Examining this restriction, we find a specific enumeration of some twenty-six different kinds of activities. There is not one of them which is not regularly conducted for livelihood or profit. The only one conceivably conducted otherwise is a public museum; but it well may be doubted whether a public museum conducted for altruistic reasons entered into the conception of these parties in 1834. Whether so or not, it is quite certain that it was the sort of public exhibition which was maintained for reward that they intended to reach. Activities in which one may be busied as a principal concern or interest of his life, and which lie outside of the sphere of business conducted as a means of livelihood or profit, include for the most part or entirely those which are charitable, religious, educational, or social in their nature. The category of forbidden activities contained in the covenant includes no one partaking of either of these characters. To say that, the word “business,” used as a general descriptive term in the immediately following general descriptive language, is to be interpreted in the most comprehensive of its several appropriate meanings without some affirmative reason for so doing, is violative of the accepted rule of construction under such conditions, which we have already noticed.

If we look for such reasons, they are entirely lacking, unless, indeed, we assume to discover it in the secret and unexpressed intent of the parties. The specific enumeration does not indicate it certainly, and there is nothing in the general tenor and scope of the instrument or in any portion of it which does so. On the contrary, the use of the term “business” in connection with that of trade, and unassociated with any other more comprehensive word, forcibly suggests that it was not within the purpose of the parties to forbid uses of the property which were charitable, religious, educational, or social in their essential character, or other uses, if any there be, which are not a means of livelihood or profit. The word “business” in its ordinary and common use among men, is employed to designate human efforts which have for their end living or reward. It is not commonly used as descriptive of charitable, religious, educational, or social agencies. Can it be imagined readily that any one of these parties would have referred to a charitable institution, or a church building or adjunct, or a free school, or a social club, as a business? We imagine not, and it is no- less improbable that they employed that term in the instrument in question in the permissible broad sense of it which would include such activities.

Further reinforcement of this view is found in the characteristic features which mark the several forms of business specifically forbidden, and these features furnish significant indications of the basic reasons for their respective prohibition. Each one of them is either inherently dangerous, notoriously offense to the sense of smell, or naturally unpleasantly noisy in their operation, obnoxious to a prevailing moral sense, or attractive of crowds of people, more or less heterogeneous in character. These features are peculiarly incident to enterprises carried on for their return in pecuniary reward. They are not such as could well be expected to attach to other activities. No one of them, save possibly the last, could by any reasonable stretch of imagination be anticipated as attending the conduct of any charitable, religious, educational, or social undertaking, and that one would scarcely present itself in any objectionable form under conditions existing in New Haven in 1834. It is obvious, and the ejusdem generis principle of construction leads to the same conclusion, that it was obnoxious features of the same general nature as those characterizing the kinds of business enumerated, at least in that they are inherent in the nature of the business, and do not arise from the personal attitude toward the business of those affected unpleasantly by it, that was within the intention of these parties to prevent, and therefore the inference becomes all the stronger that it was business in the ordinary sense that it was intended to reach.

The plaintiffs appeal to two English cases in support of their contention that the defendant’s proposed enterprise is to be classed as a business. Both of these were cases where general descriptive language only was used in the covenant; and the question presented was for that reason a distinctly different one from that before xis. See Bramwell v. Lacy, L. R. 10 Ch. Div. 691; Rolls v. Miller, L. R. 27 Ch. Div. 71. We have no occasion, therefore, to inquire whether or not we should be satisfied with their reasoning as applied to their facts. The two remaining cases referred to by the plaintiffs’ counsel in support of their claim now under consideration are in nowise inconsistent with our conclusions. Both were cases of private schools conducted for profit. See Kemp v. Sober, 1 Sim. New Ch. 517; Doe, dem. Bish v. Keeling, 1 Mau. & Sel. 95.

We are of the opinion that the defendant’s projected institution, in so far at least as its proposed purposes and method of conduct is indicated in the record, will not be a business within the meaning and intent of the restrictive covenant in question, and for that reason will not be within its prohibition. This conclusion renders it unnecessary to consider other questions presented by the appeal and argued.

There is no error.

In this opinion Hall, C. J., Thayer and Roraback, Js., concurred.