Smith v. Price

101 N.E. 370, 214 Mass. 298, 1913 Mass. LEXIS 1111

Opinion

Loring, J.

This case comes up on exceptions taken in a suit to enforce a five-foot set back restriction on the defendant’s land. The restriction was created in a deed made in 1838. It appeared on the uncontradicted evidence that the defendants and those under whom they claim title had maintained on their land a two-story wooden house which covered the whole front of the lot, including the five-foot space here in question, for a period of more than thirty years before the bill in this suit was filed. The plaintiff asked the judge

Footnotes

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* “to rule that the erection and maintenance for •more than thirty years of the two-story wooden building upon the •defendants’ premises did not extinguish the restrictions, that the restriction would revive upon the destruction of the wooden building, and that the defendants had no right to erect a brick building thereon eight stories high after the removal of the present build•ings.” The judge refused to give that ruling and an exception was 'taken to that refusal.

■ The only case relied on by the plaintiff in support of the ruling which he asked for is Arnold v. Stevens, 24 Pick. 106. What was decided in Arnold v. Stevens was that mere non-user of an easement ■created by grant, even for more than twenty years, does not work an extinguishment of it. But it was expressly stated in Arnold v. Siemens that if the non-user for twenty years was united with an adverse use of the servient estate inconsistent with the existence of it, the easement is thereby extinguished. See p. 113. The same doctrine is laid down in Jennison v. Walker, 11 Gray, 423, 425, 426, Brace v. Yale, 10 Allen, 441, 443, Owen v. Field, 102 Mass. 90, 114, Smith v. Langewald, 140 Mass. 205, 207. And in the case of Chandler v. Jamaica Pond Aqueduct, 125 Mass. 544, a decision to that effect was made.

* Morton, J.

C. W. Rowley, for the plaintiff. B. H. Greenhood, for the defendants.

In this regard what for convenience is called an equitable restriction stands on no better footing than an easement. The right to enforce it was wholly extinguished by non-user for twenty years and more, coupled with a use of the land subject to the restriction inconsistent with the existence of the restriction. The exception taken to the ruling to that effect * made by the judge and that taken to the refusal to give the ruling asked for by the plaintiff must be overruled; and it is "

So ordered. ¡

The case was submitted on briefs.

The ruling which was given was that the defendants “had title in fee simple to the premises by adverse possession, and that by reason of the maktenance of the buildings thereon for more than thirty years, the restrictions upon the land were extinguished.”