Ladd v. City of Boston

24 N.E. 858, 151 Mass. 585, 1890 Mass. LEXIS 271

• Court: Massachusetts Supreme Judicial Court
• Decided: June 20, 1890
• Status: Published

Opinion

Holmes, J.

The ground of the motion to dismiss the petition is, that the petition does not show any taking of any estate of the petitioner for which the city of Boston is liable, and that is the only question upon which we pass. It may be that a separate petition ought to have been filed for each estate taken, but upon that we express no opinion at this stage. Neither do we express any opinion on the question of parties, or upon the effect of a previous petition having been filed in respect of some of the same lots, if such be the fact.

It appears that the petitioner’s predecessor in title and the then owners of the land taken by the city for the new court-house were parties to an indenture whereby it was covenanted, among other things, that the land in front of the petitioner’s lot and just across the street should not be built upon beyond a certain line on what is now Pemberton Square, and should be subject to some other similar negative restrictions. This land the city has taken free of these restrictions. If the plaintiff has an easement, the city must pay for it.

The right to have land not built upon, for the benefit of the light, air, etc. of neighboring land, may be made an easement, within reasonable limits, by deed. Brooks v. Reynolds, 106 Mass. 31. And such an easement may be created by words of covenant, as well as by words of grant. Hogan v. Barry, 143 Mass. 538. In order to attach the easement to the dominant estate, it i]. ’ is not necessary that it should' be created at the moment when either the dominant or the servient estate is conveyed, if the purport of the deed is to create an easement for the benefit o”f the dominant estate. Louisville & Nashville Railroad v. Koelle, 104 Ill. 455. Wetherell v. Brobst, 23 Iowa, 586, 591. Gale on Easements, (6th. ed.) 59. Of course it does not matter that by the same deed numerous parties grant similar or reciprocal easements over, or in favor of, many parcels of land. Tobey v. Moore, 130 Mass. 448. Beals v. Case, 138 Mass. 138, 140. Neither is it material that the indenture provides that a majority of three fourths of the owners of the lots concerned may terminate the rights which it creates.

If, then, we are to assume that at the time of the indenture the owner of the petitioner’s lot was a different person from the owner of the opposite lot taken by the city, we have a plain case of a grant of easements to have certain parts of the latter not built upon, or not built upon above a certain height. Such would seem to have been the fact from the plan, referred to in the petition, which was exhibited to us at the argument, and from the petition itself, which states that the petitioner’s right acquired under the indenture was an easement.

It follows, that we need not consider the argument for the city, that owners of purely equitable restrictions are not entitled to maintain a petition of this nature.

Motion overruled.