Schwoerer v. Boylston Market Ass'n , 99 Mass. 285 ( 1868 )

Foster, J.^*

The deed from the Boylston Market Association to Reed and Dyer, under which the plaintiff’s title is derived, grants tc them and their heirs and assigns, as to all that part of the association’s land which is the passagev/ay now in dispute, the right that it “ shall not be subject to have any fence or building erected thereon.”

In the opinion of the court, this language requires that the entire space of the passageway shall be kept open and unobstructed by any building. It is not the case of a mere right of waj where the owner of the soil may do any acts which do not interfere with the enjoyment of the easement; but it is a right to have the entire court or passageway kept open to the sky. This may be beneficial to the plaintiff’s estate, not only as a way, which was doubtless the chief use contemplated by the parties to the deed, but also for light, air and prospect, and every other accommodation and advantage which such an open court might furnish to an estate abutting upon it.

We cannot distinguish in this case between the obstruction of a building on the ground and one fifteen feet above. Either would for many purposes injure every estate on the passage. It is plain that dwelling-houses or other buildings on a court in a city are more valuable where the court is not arched or built over at its mouth, than where it is entered by passing under cover of a building. The right to have the entire space kept open and not built upon is one that equity will protect; and the

Case must stand for trial.

After this decision, the case was referred to a master to take and report the evidence, upon whose report and the pleadings the case was submitted to the full court for final determination at the present session.

The testimony reported related, 1. to the completion of the structure; and 3. to the relations of the defendants with Buckley & Bancroft, a copartnership with which it appeared that prior to the filing of the bill the defendants made the contract mentioned in their answer as requiring the erection of the structure complained of. The substance of all which is material on these points is stated in the opinion. It further related, 3. to the plaintiff’s title under the mesne conveyances of his lot from Reed and Dyer; and on this point it appeared that in several of the deeds, (including the deed of May 1, 1857, from Jacob Sleeper to the plaintiff,) no express reference was made to Boylston Square except as a boundary, nor to any rights therein as appurtenant to the granted premises except as included under such a general phrase as “ with all the rights, easements, privileges and appurtenances thereto belonging.” Finally, the testimony reported related, 4. to the question whether there had been a forfeiture of the plaintiff’s rights, if any, by noncompliance with the provisos of the defendants’ grants, or whether any neglect in that respect had been waived by the defendants ; and 5. to the question whether the defendants had not obtained by prescription a right to maintain the structure over Boylston Square, by reason of the previous maintenance of certain large signboards in substantially the same position.

J. D. Ball, for the plaintiff.

P. W. Chandler Sf R. F. Fuller, for the defendants.

Colt, J.

Upon the plaintiff’s offer to prove the facts stated in his bill, it was held at a former hearing that the deed from the defendants to Reed and Dyer, under whom the plaintiff claims title to a part of the land adjoining the strip or passageway therein described, conveyed the right to have the passage kept open to the sky ; and that this bill might be maintained to prevent the erection of a building or suspended bridge over it, though supported by the adjoining buildings solely, and leaving a passage fifteen feet high under the same.

Under this decision, the parties proceeded to take evidence in support of the allegations in the bill and answer. It now appears that on July 1,1866, the defendants entered into a contract with Buckley & Bancroft, by which they agreed to lease to them for a term of years the premises adjoining said strip on both sides thereof and fronting on Washington Street, to put the same in good tenantable condition, to construct at their own expense a covered way or bridge four or five feet wide across said passagéway, and to permit Buckley & Bancroft to put up a counting-room on the east side thereof at their expense, if they should choose to do so; Buckley & Bancroft on their part agreeing to take possession of said premises as soon as they should be made ready for occupancy, and to sign and execute leases of the same on the terms therein set forth.

This bill was filed September 12, 1866; and on the first of November following a lease of the premises named in the contract of July 1, together with the counting-room and passageway, which had then been erected, was executed. The structure extending across the twenty feet strip or way was one story high, covering the same for a distance of twenty-six feet back from Washington Street, and leaving a space under it fifteen feet high.

Upon this state of facts, it is claimed that this bill must now be dismissed for want of necessary parties; and that Buckley & Bancroft should have been made defendants. As a general rule, in equity proceedings, all persons materially interested must be made parties either plaintiff or defendant, in order that a complete and final decree may be made, and a multiplicity of suits prevented. An objection to the nonjoinder, if deemed necessary by the defendant to his own protection, and when apparent on the face of the bill, is taken by demurrer, or otherwise by plea or answer setting forth the facts by which other persons named therein are made necessary or proper parties. If the defendant does not for any reason think fit to take the objection before, the defect may be availed of, to a limited extent, at the final hearing upon the pleadings and proof. But, when thus delayed, the objection receives far less favor from the court, and its allowance is said to depend to some extent upon sound discretion. If there be an omission of an indispensable party, so that a complete decree cannot be made without him, the court will itself, ex mero motu, take notice of the fact, and direct the cause to stand over, in order that such new party may be added ; or dismiss the bill, when the plaintiff is chargeable with loches. In such cases, it must appear that the decree will have the effect of depriving the party omitted of his legal rights. Where the defect is formal and technical merely, and is only objected to at the hearing, and especially if other parties are needed only for the defendant’s protection, the decree will not be delayed if the nonjoinder produces no other prejudice to the rights of parties before the court. It is the familiar rule that some defences cannot be made in all stages of the cause with equal effect, but will be regarded as waived when expense and delay have been incurred which might have been avoided.

In this case, we are of opinion that there is no rule governing courts of equity, in administering the relief peculiar to their jurisdiction, which requires us to delay final relief on account of the nonjoinder of Buckley & Bancroft. At the time of the filing of this bill they were only parties to a contract with the defendants, one stipulation of which was that the defendants should erect a structure over the passageway in question for their future use in connection with premises agreed to be leased. They then had no legal interest in the proposed building; were not at that time concerned in its erection ; and the plaintiff then had no knowledge of the contract. Their rights are to be settled under this executory contract. The fact that they after-wards became lessees in pursuance of its terms does not affect the question. All leasehold or other titles acquired pendente lite are affected with notice; and parties claiming such titles need not be joined, but are bound by the decree. It is plain that the defendants’ contract with third persons to erect a building for their future use in a place where they have no right to build does not imperatively require that such third parties should be made defendants, in a bill brought for its removal before they have taken possession and entered upon its use, and when the objection of nonjoinder is first made at the hearing. However proper it may have been to have joined them originally, they are not now indispensably necessary. Their legal rights are not affected by the decree, but remain unimpaired, if they have any, under the contract. They are not required to be joined on the ground that no effectual decree can be made against them; be cause a decree ordering the removal of the obstruction will afford adequate and complete relief, and can be enforced without naming them or requiring any act on their part.

The statement in the answer, of the existence of a contract in general terms for the erection of this structure, without stating it to be in writing, or with whom or where made, or that it was made before the filing of the bill, is to be regarded rather as an inducement to the defendants’ claim of injury, and is not, as suggested, a proper mode of raising the objection of a want of parties. A general demurrer with nothing in the bill to disclose the defect of course cannot aid the defendants.

There is another rule often laid down which leads to the same result. In a suit brought against a party whose title to real eatate is disputed, the occupying tenants or lessees claiming possession under him are not deemed necessary parties, upon the ground that their rights are in some sort represented and so far protected. Story Eq. Pl. § 151.

The further objection, that the other persons who have become owners of lands adjoining the passageway, and who have the same privileges, are not joined, cannot prevail, for the reason above stated; and for the further reason that such owners have distinct and several interests. The rule requiring all parties having a community of interests to be joined, or proper reason shown for the nonjoinder, does not apply, even if that rule would be enforced when the defendant does not suggest the defect in his pleading. The remedy applied will obviate the n¿ed of any further litigation by other parties having similar rights. 1 Dan. Ch. Pr. (3d Am. ed.) 305, note. Story Eq. Pl. §§ 74 a, 116 note, 279, 534, 535. Townsend v. Auger, 3 Conn. 354.

It is further claimed that the plaintiff fails in his evidence to show any title, under the grant to Reed and Dyer, to demand the removal of the obstruction. By acquiring title to the premises occupied by him bounding on the passageway, he became entitled to the use of the way, by virtue of the original grant as therein defined, as appurtenant to his estate, even though the words privileges and appurtenances had not been added in his deed. To ascertain the extent and character of the incorporeal right to which be thus acquired title, resort is had to the terms of the original grant. The agreement not to make erections in the passageway was not, it is true, technically a covenant running with the land. There can be no covenant running with the land, it is said, where no land, but only an incorporeal hereditament, is granted. Hurd v. Curtis, 19 Pick. 459. But this is not an action upon the covenant. The defendants had the right to put such restrictions and limitations upon their own estate, in favor of adjoining estates, in granting this right of way, as they chose. And courts of equity, in determining the rights of the parties, will ascertain the intention by all the provisions and stipulations made. Between the original parties only, the agreements and stipulations may be enforced at .aw. But in equity those claiming title under them may resort to the whole instrument, including the covenants and agreements in gross, for the purpose of ascertaining the nature of the right intended to be conveyed; and, when ascertained, the court will enforce, in favor of such persons, that use or mode of enjoyment which the grantor has seen fit to impress upon it. The effect of a grant will thus be given to that which is in the form of an agreement binding at law only between the original parties. Whitney v. Union Railway Co. 11 Gray, 362. Parker v. Nightingale, 6 Allen, 344. Hubbell v. Warren, 8 Allen, 178. Underwood v. Carney, 1 Cush. 285. 1 Smith Lead. Cas. 27, note. Hills v. Miller, 3 Paige, 254. Watertown v. Cowen, 4 Paige, 510. Hooper v. Cummings, 45 Maine, 364 Willard v. Henry, 2 N. H. 120. Sharon Iron Co. v. Erie, 41 Penn. State, 342.

Two other grounds of defence remain to be considered. It is contended that the defendants’ grant was upon conditions which the grantees have failed to perform; or at least that the stipulations in regard to sidewalks, paving and repairs, were covenants which have been broken ; and so that the plaintiff has no equity to demand the relief he seeks. The answer contains no allegation that the easement was granted on conditions, precedent or subsequent, by failure to perform which the rights described never vested or were subsequently forfeited. Such a defence, if sustained, would of course involve a forfeiture of the entire easement, including the passageway. The whole defence is inconsistent with such a result. The answer proceeds on the ground that the structure erected by the defendants is consistent with the right of passageway which the plaintiff claims, and which it is not distinctly denied that to some extent he possesses ; and much of the evidence is directed to sustain the position.

The words “provided that” and “ provided also” do not always constitute a condition, and the question whether there be a condition, as well as whether it be precedent or subsequent, is to be determined by ascertaining the intention of the parties from the whole language used, and the nature of the act required. When for the purpose of its fulfilment it implies that the grantee is to have possession and control of the premises, it is ordinarily construed to be "a condition subsequent. South Congregational Meeting House in Lowell v. Hilton, 11 Gray, 409. But upon a full consideration of the evidence we do not find it necessary to place the decision upon any alleged insufficiency of the pleadings, or any careful construction of the terms of the alleged condition. The lapse of time, the acts and conduct of the defendants, preclude them from availing in this case of any past breaches of the stipulations in reference to sidewalks, paving and repairs. It is clearly compétent to prove a waiver of the strict performance of the stipulations or conditions, by paroi evidence of the acts and declarations of the parties. Leathe v. Bullard, 8 Gray, 545. [Here followed, in the opinion, a summary of the evidence on the question of waiver, which is omitted, as it included no discussion of points of law.] We are satisfied that a literal compliance with the provisions of the grant now insisted on has been waived and dispensed with, to this time at least, by the defendants. Merrifield v. Cobleigh, 4 Cush. 178. Hadley v. Hadley Mmufacturing Co. 4 Gray, 140. Ludlow v. New York & Harlem Railroad Co. 12 Barb. 440.

And finally, in regard to the alleged right by prescription to maintain the erection, the evidence fails to satisfy us that such right was acquired by the defendants. [Here followed a similar summary of the evidence on the question of prescription, which is omitted for the same reason.]

All the evidence satisfies us that the present structure is a substantial damage to the plaintiff’s estate; and a decree must therefore be entered directing its removal, with a perpetual injunction against its future erection, and with costs for the plaintiff,

* Gray, J., did not sit at the argument.