Attorney General v. Ayer , 148 Mass. 584 ( 1889 )

Holmes, J.

The allowance of “ steps, windows, porticos, and other usual projections appurtenant to said front wall ” in the reserved space of twenty-two feet is shown not to be confined to projections closely similar to porticos, using that word in a nar- , row sense, by the limitation set upon the allowance when the projection is in the nature of a bay window or octagon front. Bay windows and octagon fronts cannot be said to resemble porticos, however the word “ portico ” be interpreted. The general scope of the permission, then, is to sanction any projections incident to the front wall which are usual in the sense that porticos are usual. The word “ other ” imports, of course, that porticos are usual within the meaning of the deed. Hubbard v. Taunton, 140 Mass. 467, 468.

The same considerations which show the extended scope of the permission make against a narrow and restricted interpretation of the word “ porticos.” If there is a permission to put out bay windows and octagon fronts, there is no conceivable reason why porches should be forbidden. The Attorney General sought to interpret the requirement that certain structures should fall within the trapezoid as a new permission. But, plainly, it is not so, but is a qualification of a permission already given to put out porticos and other usual projections. If this porch was not permitted under the head of porticos and other usual projections, it was not permitted at all. See Linzee v. Mixer, 101 Mass. 512; Attorney General v. Gardiner, 117 Mass. 492, 500.

Etymologically the words “porch ” and “ portico ” are one. Formerly porch was used as synonymous with portico in its classic sense. “ And he made a porch of pillars; the length thereof was fifty cubits." 1 Kings, vii. 6. The tendency in modern times, no doubt, has beén to diminish “ porch ’’ to the shelter in front of the door of a building, and we are very willing to assume that, with the constant growth of distinctions and nice discriminations in the meaning of words, “ portico ” retains more of the original suggestion of length and of a roof supported by pillars, among architects and scholarly persons, and that porch is more specially appropriated to a smaller structure, generally with closed sides. But the distinction is not carefully preserved in common speech. With us portico, as well as porch, has shrunk, and usually means a shelter in front of a door. See Dyche & Pardon’s Dict. 1754, also Imperial Dict. 1882, Portico. When porticos are cut down to the little structures which we all know, we think that special reference to the mode of support has vanished almost as completely as to the length. The parties to this deed did not mean by portico “ a walk covered with a roof, supported by columns at least on one side.” They meant the shelter to the door of a building, familiar to- Massachusetts and to Boston. We are of opinion that they used it as a generic word, including a shelter with closed sides, as well as one with pillars. We agree that in determining the scope of the word we must look at the object of the restrictions and of the exceptions to it. But, as we have said, the permission extends to more serious structures, with closed sides, and therefore there is no reason for excluding porches. Indeed, a portico projecting not more than five feet would, or at least might, obstruct the view of a neighboring house with its pillars almost as completely as if its sides were closed.

In view of our construction of the word “ portico,” we have not studied the evidence that porches were usual projections in Boston at the date of the, deed. They would seem to have been. We cannot agree to so nice a distinction as that taken in respect of their position on the building, or that, if a porch in the middle of a front wall was a usual projection, one adjoining the partition wall would not be. If the projection was a usual one on any part of the front, it was permitted anywhere, subject to restrictions recited in the deed, which dealt with its extent and place.

It was argued that, if porches were permitted at all, then they were “ projections in the nature of a bay window, circular front or octagon front,” and must be kept within the trapezoid prescribed. This argument is not without force when the objects to be prevented are considered. Still, we are all of opinion that it would be pressing the language beyond its fair scope, if we should extend it beyond projections of the front wall of the building, in view of the words which follow those just quoted; namely, “ with the foundation wall sustaining the same (such foundation wall being a projection of the front wall).” The walls and foundations of the present structure are distinct from the front wall of the building and its foundation.

Information dismissed.