Williamson, C. J.
This is an appeal by the defendants from a decree in equity. The plaintiifs are the owners of a portion of lot numbered 90 at Higgins Beach in front of which lies shore lot numbered 190 owned by the defendants. Lot 190 was used by the defendants for a public parking lot for profit. The decree perpetually enjoined the defendants “from permitting the parking of automobiles, buses or other vehicles” on their lot, thus destroying the parking lot business.
The case arises from the alleged breach by the defendants of a covenant purporting to restrict the use of the land now known as lot 190. The covenant appears in the deed conveying lot 90 given in 1898 by the then owners of both lot 90 and lot 190. It reads:
“. . . and the said grantors hereby covenant and agree with the said grantee that upon the parcel of land lying in front of said lot Ninety included between Bay View Avenue, and the sea, and the side lines of said lot Ninety produced to the sea, they will erect or maintain no building or structure of such a character as to interrupt or interfere with the view over said parcel from said lot Ninety.”
The defendants contend the plaintiffs failed to establish the ownership of both lots in the 1898 grantors, or, in other words, a common ownership at that date of lots 90 and 190. We are satisfied, however, as was the sitting justice, that such was the fact within the agreement of the litigants. In any event, our decision does not turn upon this issue of fact.
The sitting justice, in reaching his conclusion, said in part:
[281] “The plaintiffs contend that the parking of these vehicles cause an obstruction of view and violates the above cited easement. They also object to the building of the retaining wall which they say interferes with their right of view.”
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“The grantors by this covenant of view burdened the servitude lot 190 for the benefit of the dominant lot 90, thereby creating a covenant running with the land which continues to be of benefit to the land of these plaintiffs.
“The easement created prohibits the maintenance of any structure which is of such a character as to interrupt or interfere with the view from lot 90.
“There appears to be no question that the parking of automobiles, trucks and busses on lot 190 does interrupt and interfere with the view from lot 90.”
The decree did not touch the retaining wall and so we dismiss any objection thereto from consideration.
The decisive issue, in our view of the case, is this:
Is an automobile, bus, or other vehicle parked on lot 190 thereby interrupting or interfering with the view from lot 90, a “building or structure” within the meaning of the restrictive covenant? We think not. The vehicles are not buildings, nor do they have the characteristic permanency which we associate with structures.
It is urged in argument that the controlling words of the covenant are not “building or structure” but “to interrupt or interfere with the view.” In brief, the plaintiffs’ position is that any use of lot 190 which interrupts or interferes with the view violates the covenant.
A restrictive covenant ought not to be extended by construction beyond the fair meaning of the words. We must not attempt to rewrite the agreement of 1898 in the light [282] of what would be desirable in 1957. The prohibition of “any use” obstructing the view places no limit whatsoever on the types of use prohibited. For example, trees obstructing the view would fall within “any use.” If such was the intention of the parties to the 1898 deed, the covenant could readily have guarded against obstruction of the view from any use, and not in terms against only buildings or structures.
There is no suggestion that the words “building or structure” were not in 1898, as today, words of plain meaning and in ordinary usage. The plaintiffs would utterly destroy their force and effect in the covenant.
A structure is “something constructed or built, as a building, a dam, a bridge; esp., a building of some size; an edifice.” Webster’s New International Dictionary (2d ed.) Unabridged. In 40 Words and Phrases 323 et seq. and 1957 Cumulative Pocket Parts may be found other cases which serve to illustrate the point that motor vehicles are not structures.
“Deed restricting erection of ‘structure’ in front of property means something which will interfere with use of street or obstruct view.” (Boardwalk) Hulett v. Borough of Sea Girt, 106 N. J. Eq. 118, 150 A. 202, 205.
“The word ‘structure’ as used in a zoning ordinance has been held to mean any construction, or any production or piece of work artificially built up or composed of parts joined together in some definite manner.” (Zoning) Paye v. City of Grosse Pointe, 279 Mich. 254, 271 N. W. 826, 827.
“In common usage, the word ‘structure’ describes something constructed or built, and, in an accepted sense, a trailer house is a structure.” (Zoning) City of Sioux Falls v. Cleveland, 75 S. D. 548, 70 N. W. (2nd) 62, 64.
“Word ‘structure’ means anything which is constructed or erected and use of which requires more [283] or less permanent location on ground or attachment to something having permanent location on ground.” (Workmen’s Compensation) Holsey Appliance Co. v. Burrow (Okl.), 281 P. 2d 426, 427.
“The word ‘structure’ encompasses walls, wells, septic tanks, water tanks, towers, and every other product of construction designed for permanent use where it stands, not included within meaning of the word ‘building.’ ” (Zoning) A. Dicillo & Sons v. Chester Zoning Bd. of Appeals, Ohio Com. Pl., 103 N. E. (2nd) 44, 47.
The Connecticut Court, in holding that a billboard, while it was a structure, was not a building within a restrictive covenant, stated the principle in these words:
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Williamson, C. J.
This is an appeal by the defendants from a decree in equity. The plaintiifs are the owners of a portion of lot numbered 90 at Higgins Beach in front of which lies shore lot numbered 190 owned by the defendants. Lot 190 was used by the defendants for a public parking lot for profit. The decree perpetually enjoined the defendants “from permitting the parking of automobiles, buses or other vehicles” on their lot, thus destroying the parking lot business.
The case arises from the alleged breach by the defendants of a covenant purporting to restrict the use of the land now known as lot 190. The covenant appears in the deed conveying lot 90 given in 1898 by the then owners of both lot 90 and lot 190. It reads:
“. . . and the said grantors hereby covenant and agree with the said grantee that upon the parcel of land lying in front of said lot Ninety included between Bay View Avenue, and the sea, and the side lines of said lot Ninety produced to the sea, they will erect or maintain no building or structure of such a character as to interrupt or interfere with the view over said parcel from said lot Ninety.”
The defendants contend the plaintiffs failed to establish the ownership of both lots in the 1898 grantors, or, in other words, a common ownership at that date of lots 90 and 190. We are satisfied, however, as was the sitting justice, that such was the fact within the agreement of the litigants. In any event, our decision does not turn upon this issue of fact.
The sitting justice, in reaching his conclusion, said in part:
[281] “The plaintiffs contend that the parking of these vehicles cause an obstruction of view and violates the above cited easement. They also object to the building of the retaining wall which they say interferes with their right of view.”
;¡: >¡; ij; ‡
“The grantors by this covenant of view burdened the servitude lot 190 for the benefit of the dominant lot 90, thereby creating a covenant running with the land which continues to be of benefit to the land of these plaintiffs.
“The easement created prohibits the maintenance of any structure which is of such a character as to interrupt or interfere with the view from lot 90.
“There appears to be no question that the parking of automobiles, trucks and busses on lot 190 does interrupt and interfere with the view from lot 90.”
The decree did not touch the retaining wall and so we dismiss any objection thereto from consideration.
The decisive issue, in our view of the case, is this:
Is an automobile, bus, or other vehicle parked on lot 190 thereby interrupting or interfering with the view from lot 90, a “building or structure” within the meaning of the restrictive covenant? We think not. The vehicles are not buildings, nor do they have the characteristic permanency which we associate with structures.
It is urged in argument that the controlling words of the covenant are not “building or structure” but “to interrupt or interfere with the view.” In brief, the plaintiffs’ position is that any use of lot 190 which interrupts or interferes with the view violates the covenant.
A restrictive covenant ought not to be extended by construction beyond the fair meaning of the words. We must not attempt to rewrite the agreement of 1898 in the light [282] of what would be desirable in 1957. The prohibition of “any use” obstructing the view places no limit whatsoever on the types of use prohibited. For example, trees obstructing the view would fall within “any use.” If such was the intention of the parties to the 1898 deed, the covenant could readily have guarded against obstruction of the view from any use, and not in terms against only buildings or structures.
There is no suggestion that the words “building or structure” were not in 1898, as today, words of plain meaning and in ordinary usage. The plaintiffs would utterly destroy their force and effect in the covenant.
A structure is “something constructed or built, as a building, a dam, a bridge; esp., a building of some size; an edifice.” Webster’s New International Dictionary (2d ed.) Unabridged. In 40 Words and Phrases 323 et seq. and 1957 Cumulative Pocket Parts may be found other cases which serve to illustrate the point that motor vehicles are not structures.
“Deed restricting erection of ‘structure’ in front of property means something which will interfere with use of street or obstruct view.” (Boardwalk) Hulett v. Borough of Sea Girt, 106 N. J. Eq. 118, 150 A. 202, 205.
“The word ‘structure’ as used in a zoning ordinance has been held to mean any construction, or any production or piece of work artificially built up or composed of parts joined together in some definite manner.” (Zoning) Paye v. City of Grosse Pointe, 279 Mich. 254, 271 N. W. 826, 827.
“In common usage, the word ‘structure’ describes something constructed or built, and, in an accepted sense, a trailer house is a structure.” (Zoning) City of Sioux Falls v. Cleveland, 75 S. D. 548, 70 N. W. (2nd) 62, 64.
“Word ‘structure’ means anything which is constructed or erected and use of which requires more [283] or less permanent location on ground or attachment to something having permanent location on ground.” (Workmen’s Compensation) Holsey Appliance Co. v. Burrow (Okl.), 281 P. 2d 426, 427.
“The word ‘structure’ encompasses walls, wells, septic tanks, water tanks, towers, and every other product of construction designed for permanent use where it stands, not included within meaning of the word ‘building.’ ” (Zoning) A. Dicillo & Sons v. Chester Zoning Bd. of Appeals, Ohio Com. Pl., 103 N. E. (2nd) 44, 47.
The Connecticut Court, in holding that a billboard, while it was a structure, was not a building within a restrictive covenant, stated the principle in these words:
“In the determination of the meaning in which words in a restrictive covenant are used, the controlling factor, 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. 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. Restrictive covenants, being in derogation of the common-law right to use land for all lawful purposes that go with title and possession, are not to be extended by implication, (citations omitted) There is nothing in the record to indicate that the parties to the covenant intended that the word ‘building’, as used, was not to be taken in its ordinary and popular sense. There is no basis for concluding that, under the rule to be applied in discovering the ex[284] pressed intent, the word had any other meaning.” Katsoff v. Lucertini, 141 Conn. 74, 103 A. (2nd) 812, 814.
In light of the construction we place upon the covenant, that is to say, that the parked vehicles are not structures and so parking is not prohibited, it becomes unnecessary to consider the binding quality of the covenant upon lot 190. If a building or structure interfering with the view were involved, the effectiveness of the covenant would be a matter for decision.
It is sufficient for our purposes that we look upon the covenant in the view most favorable to the plaintiffs in every respect, except on the point immediately in issue. We are then unable to escape the conclusion that the prohibition of the covenant covers only buildings and structures of a certain character, and that parked motor vehicles do not fall within the class prohibited.
In this opinion we neither express nor intimate any views upon the covenant, except upon the issue, and that alone, stated earlier in the opinion.
The entry will be
Appeal sustained with costs to be taxed below. Case remanded for entry of a decree of dismissal in accordance with this opinion.