Linzee v. Mixer

101 Mass. 512

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1869
• Status: Published

Opinion

Ames, J.

Of the various defences insisted upon by the defendants, it appears to us that the first one to be considered is the denial on their part that the building erected by the defendant Mixer was constructed “ in any manner and form contrary to the agreements and provisions ” contained in the title deeds, or “ beyond the line ” fixed by those deeds; or that he has done anything which he was not “ permitted and allowed to do by the terms of said deeds.” The language of the restriction upon which the plaintiffs rely, is to this effect, “ that the front wall thereof” (that is, of Mixer’s building,) “ on Marlborough Street, shall be set back twenty-two feet from said Marlborough Street, provided that steps, windows, porticos and other usual projections appurtenant thereto are to be allowed in said reserved space of twenty-two feet.” And the defendants claim that, in finishing the house with an octagon front, as it is called, they have adopted a mode of building which is, and for many years has been, in very general use in Boston; and that, as it is mainly intended to give some important advantages in the way of increased light and air, their front wall as it now stands comes within the description of “usual projections appurtenant” to windows. But, with every disposition on our part to give to the terms of the title deeds a liberal, rather than a narrow and technical construction, we find it wholly impossible to adopt the defendants’ interpretation of the stipulation as to the reserved space, without reducing it to a mere nullity. It is manifest, on inspection of the plans and drawings, that substantially the whole of the front wall of the defendants’ house, from the foundation to the roof, encroaches upon, and occupies a large portion of the reserved space. It would be a mere abuse of language to describe so manifest an invasion of the forbidden ground as one of the “usual projections appurtenant” to windows.

Another ground of defence is, that, even upon the assumption that the conditions of the title deeds have not been complied with, yet the plaintiffs have lost all claim to equitable relief by their own loches; that they saw in what way the defendant Mixer was erecting his front wall, and suffered him to go on expending a large amount of money upon it, without attempting to interrupt his proceedings and bring the rightfulness of his claim to an early test, by filing their bill in equity; that they did not even give notice in any less formal manner of their objection to his mode of building; and that it would be contrary to equity and good conscience, now that the house is finished, to insist that it be torn down or mutilated. But it is not controverted that, at a very early stage in the proceedings, and in fact as soon as the intended shape and position of the front wall were indicated, distinct notice was given to the architect who superintended and directed the work for Mixer, that “ he was infringing upon the terms and stipulations of the deed,” by building in that manner, and that the plaintiffs would use all the means in their power to resist it. Mixer himself, in his deposition, admits that something was said to him, soon after the work was begun, about its being in violation of the restrictions in his deed, but that he did not understand that there were any “ serious objections.” We certainly see nothing in the case from which actual consent, or even passive acquiescence, on the part of the plaintiffs, could fairly be inferred. They aver in their bill, that in May 1865, when the foundation of the wall was laid, they applied to the commissioners on public lands to enforce the condition; and the commissioners in their answer admit that they did so; and although nothing came of their application, except a general assurance that they should be protected in their rights, it may well be that the plaintiffs expected, at least for a time, that the commissioners would take some action in their behalf. We cannot lose sight of the fact that, in building as he did, Mixer was acting under a claim of right. He did not ask their consent, and does not appear to have troubled himself to inquire whether they assented or objected to his mode of proceeding. He undertook to carry out his own interpretation of his title deeds, and to reject and repel their interpretation. He saw fit deliberately to proceed and build upon the reserved land, and denies that his neighbors have any right to object or complain. It was no part of his right to compel them to resort to legal process to restrain his operations in limine. He is not in a position to say that he had any reason to suppose that they consented to his operations, or that he has been misled, or is taken by surprise, by finding that they deny his right to build as he has built. We think that under the circumstances their delay to file their bill in equity is sufficiently explained and accounted for, by the fact that they had applied to the commissioners for relief, and had a right to expect from them a decision upon the question submitted. It is true that “it would be contrary to equity and good conscience to suffer a party to lie by, and see acts done, involving risk and expense, by others, and then permit him to enforce his rights, and thereby inflict loss and damage on parties acting in good faith.” This is all that we understand to be meant by the remark of the court in the case of Whitney v. Union Railway Co. 11 Gray, 359, 367, to the effect that the “ suit in equity ” in such cases, “ must be seasonably commenced, before the persons in possession of the estate have expended money or incurred liabilities in erecting buildings or other structures on the premises.” It is quite enough that the circumstances show that there was no loches on the part of the plaintiffs. In our judgment, Mixer had no reason to suppose that his proceedings were assented to; and the other defendant, Crafts, admits that she purchased the estate with full knowledge of all the facts, and with a bond from Mixer to indemnify her against loss. %

As to the objection of the omission of parties who ought to have joined as plaintiffs, or to have been joined as defendants, in the suit, there is nothing in the St. of 1866, c. 264, which requires all the grantees of the Back Bay lands, under similar deeds, to unite, and proceed collectively, by a single suit in equity, in order to enforce the conditions of their united title deeds. If the purchasers were numerous, (as in this case they are,) a remedy which could only be made use of by their unanimous consent would be of but little value. In saying that “ all grantees under such deeds shall have the right ” to proceed in equity, the statute evidently means to give a beneficial remedy to each one, to be resorted to or not, at his option, and not requiring the concurrence of other persons, who may perhaps not incline to join him. It may be also that there are other purchasers of lands in the same part of the city, whose position is very much like that of these defendants, and who may be greatly interested, so far as their feelings are concerned, in the result of this controversy; but we do not see that there are any whose rights will be directly and immediately brought in question, in the present suit, or who will be bound and directly affected by any decree which can be entered in it, except the plaintiffs and the present defendants. The objection of nonjoinder therefore does not appear to us to be of any weight.

The learned counsel for the defendants insists that the statute above mentioned cannot be made to apply to the case at bar, without giving to it a retroactive operation, which would be unjust and contrary to the letter and spirit of the Constitution. He assumes that the case depends upon that statute, and insists that, in order to have any standing in court, the plaintiffs must rely upon it, although it was not enacted until many months after the transactions that are objected to had occurred. The statute of course could not be so applied as to convert an act, which was rightful or permissible at the time of its occurrence, into a trespass or tort which should furnish a foundation for a civil action at law or a suit in equity. But we think it a very great mistake to suppose that the plaintiffs’ rights depend upon, or are very greatly modified by, that statute. The most that can be said of it is, not that it creates the right, or defines any new wrong, but that it gives an additional remedy. Its true interpretation, as we think, is, that in the case of grantees of the Commonwealth land on the Back Bay (the only case to which it applies at all) all such grantees may by proceedings in equity compel the commissioners to enter, and remove or alter, all buildings that have been erected in violation of the conditions of a deed from the Commonwealth. It is only so far as it affects the commissioners, that the present bill can be said to depend upon this recent statute. The statute leaves wholly untouched he question of the rights of such grantees as against each other, which is the main question in the case.

Upon the question whether there nos been such a violation of the plaintiffs’ rights as to entitle them to relief in equity, there is no room for doubt. It is impossible, in our judgment, to see why the case does not fall exactly within the rule so distinctly laid down in several cases that have recently been before the court. Whitney v. Union Railway Co. ubi supra. Parker v. Nightingale, 6 Allen, 341. Schwoerer v. Boylston Market Association, 99 Mass. 285. The defendant Mixer, in purchasing his lot, did not acquire the absolute and unqualified dominion over it. On the contrary, in his case, as well as that of the purchasers generally, it was a part of the title which he accepted, that he should be limited in the use of the land in some very important particulars. Any purchaser was at liberty to build or not as he pleased, but, if he saw fit to erect a building upon his lot, he was strictly limited as to its height, its position, and its use. These conditions were imposed upon the original grants by the Commonwealth, not because their observance would be of any particular advantage or consequence to the grantors, but because they were beneficial to the grantees. Their obvious tendency and purpose were to secure certain manifest advantages to the lots that were for sale, and, by adding to their attractiveness and value, to enhance their market price. It may well be supposed that the buyers attached some importance to these conditions, and paid their money in the faith that they would be enforced. In violating the conditions, and erecting his house on the reserved space, we think that Mixer went beyond his rights, and outside of the limits of his title, as plainly as if he had inclosed a portion of the sidewalk, or erected a fence across the street. He did an act that was contrary to the express language of his title deed, and that was injurious to the plaintiffs. It was an act which could no more be justified or excused by any waiver, or even by any formal or written consent, on the part of the commissioners, or of the grantors, than the discontinuance of the street, or the inclosure of a portion of the sidewalk. The commissioners may undoubtedly adopt any definition of the term “ usual projections ” that they may see fit, as to future conveyances, but they cannot alter deeds already given, or take back rights which such deeds have created.

It was suggested in the argument that the condition as to the reserved space has been so generally disregarded in practice, and that front walls like that of the defendants have been so common, that the decision of the court in the case at bar will lead to very great inconvenience and embarrassment. It may be that many grantees have misunderstood or exceeded their rights, and it may also have happened that in many cases the inconvenience that is apprehended has been cured or prevented by previous consent, or subsequent acquiescence. But however that may be, we can only administer the law as we find it to be, in the cases which we are called upon to determine.

Our conclusion, therefore, is, that the plaintiffs are entitled to relief as prayed for; and the case is to be sent to a master to consider and report in what form and manner the relief can be given with the least detriment to all parties in interest.