Sharp v. Ropes , 110 Mass. 381 ( 1872 )

Ames, J.

The case finds that Stephen Heath, being the owner of the entire tract of land, caused it to be laid out in eleven separate building lots. A plan, showing the streets that were to be opened, and the different lots, with their respective dimensions, areas and numbers, was duly recorded in the registry of deeds; but this plan furnishes no intimation of an intention on the part of the grantor to impose any restriction whatever upon purchasers, in regard to the manner in which they were to occupy or build upon the lots which they should purchase. Of the five lots upon the northerly side of Gordon Street, lot 10 was built upon by the grantor himself, he having erected a dwelling-house thereon, which has been occupied by his family since his decease. Lot 8 and a portion of lot 7 were sold and conveyed by him to George G. Drew, and have since been conveyed to the plaintiff. The remainder of lot 7 and the whole of lot 6 were conveyed to the defendant. Thus, of the five lots lying on the northerly side of that street, three were conveyed by said Heath to two separate purchasers, subject to the conditions and restrictions recited in the plaintiff’s bill. There is no suggestion that the other two lots were subjected to any restriction of the kind.

It is not claimed that, in regard to any of the lots, there was any written covenant by the grantor, and it does not appear that there was any express stipulation or direct assurance on his part, that any person who should purchase a lot on the north side of that street should have the benefit of a restriction binding all the other purchasers to leave an open space between their dwelling-houses and the street. The only ground upon which the plaintiff can rest her claim that the restriction in question was intended to operate for the benefit of all the purchasers, and to establish a general plan of building, by which each one would acquire a right in the nature of an easement in the land purchased by the others, is to be found in the fact, that in his transactions with two separate and independent purchasers, the grantor conveyed a portion of the land in each case, subject to the terms and conditions set forth in the bill of complaint. It is true that, of these conditions, the one prohibiting the prosecution of any offensive trade or manufacture upon the premises, or the using of them for the keeping of swine, or of a livery stable, would in practice be beneficial to the neighborhood generally. But it is to be remembered that the grantor had himself built a dwelling-house in that immediate neighborhood, and the provision which he made for the prevention of nuisances may have been intended for the benefit of that particular house.

It is undoubtedly true, and has often been decided, that where a tract of land is subdivided into lots, and those lots are conveyed to separate purchasers, subject to conditions that are of a nature to operate as inducements to the purchase, and to give to each purchaser the benefit of a general plan of building or occupation, so that each shall have attached to his own lot a right in the nature of an easement or incorporeal hereditament in the lots of the others, a right is thereby acquired by each grantee which he may enforce against any other grantee. Whitney v. Union Railway Co. 11 Gray, 359. Parker v. Nightingale, 6 Allen, 341. Linzee. v. Mixer, 101 Mass. 512. Tulk v. Moxhay, 2 Phil. Ch. 774. But hi the case at bar there is nothing from which the court can infer that the restriction contained in the deed from Heath to the defendant was intended for the benefit of the estate now owned by the plaintiff. No such purpose can be gathered from the plan, or from the situation of the property with reference to other land of the grantor. It purports to be a condition imposed by the grantor, and the deed points out the mode in which he, his heirs or devisees may enforce it. Neither of the deeds, under which these parties respectively claim, purports to give to the grantee any such right against any other grantee. For aught that appears, the condition may have been intended for the benefit of the grantor or his family, as long as they continued to own the dwelling-house. The burden of proof is upon the plaintiff, if she inBists upon giving to that condition any wider application, and this burden we do not find that she has sustained.

The cases cited and relied upon by the plaintiff’s counsel do not appear to us to meet this difficulty. In Tallmadge v. East River Bank, 26 N. Y. 105, a landowner in New York City had laid out a street sixty feet in width, and had sold the -building lots on each side, making use in the sales of a plan which showed that an open space was to be reserved in front of each lot. The purchasers bought under this plan, and with the express assurance that it should be adhered to, and their right to enjoy the promised advantages was sustained by the court. In Hills v. Miller, 3 Paige, 254, the owner had sold a tract of land, giving at the same time a bond that a smaller triangular lot belonging to him, in front of the lot sold, should not be occupied with buildings. The court held that the deed and the bond constituted one contract, and created an easement which could be enforced against any purchaser of the triangular lot, with notice. In Barrow v. Richard, 8 Paige, 351, an estate had been subdivided into a large number of building lots, which the owner had conveyed by deeds to various purchasers, with express covenants against all trades, Sac., offensive to “the neighboring inhabitants.” The English cases also cited, Child v. Douglas, Kay, 560, Coles v. Sims, 5 De G., M. & G. 1, and Western v. MacDermott, L. R. 2 Ch. 72, are all of them cases in which a general building plan, or uniform system and mode of occupation, had been distinctly established and made a part of the title conveyed, in express terms, either by the deed itself, or by some covenant or obligation connected with it by reference. But we find nothing in the terms of the conveyance, or .n any reference to a plan or covenant, or in the circumstances of the transaction, or the situation of the property, that will justify us in saying that any such general plan or system was intended by the grantor to be established for the benefit of grantees, or to make a part of their respective titles. The case in our judgment is closely analogous to Badger v. Boardman, 16 Gray, 559, Jewell v. Lee, 14 Allen, 145, Hubbell v. Warren, 8 Allen. 173, 178, and is disposed of according to the law decided in these eases, by an order that the Bill he dismissed, with costs.