Inhabitants of Amherst v. Gates , 233 Mass. 583 ( 1919 )

Braley, J.

The respondent, either by grant, devise or inheritance, holds title to the land described in the petition, which has been taken in fee by the town for the site of a public library, under the deed of Martin Thayer to David Mack, Jr., Luke Sweetser, Jonathan B. Condit and Edward Dickinson, dated May 10, 1836, the material part of which reads as follows: “A certain piece of land lying in said Amherst between Boltwood’s Hotel and said Mack’s dwelling house called the Triangle lot and situated between the old and new roads and bounded on all sides by the highway, containing one acre and eight rods, more or less, and being the same which I purchased of George Montague and others and conveyed to me by them by their deed bearing date on the 9th day of January A. D. 1836. Said land is not to be enclosed farther west than the present fence, at the west end, which is a few feet west of the east side of said Montague’s house, unless by consent of said Montague, and no building is ever to be erected on any part of said premises hereby conveyed, nor otherwise placed on said land, or any part thereof, meaning to have said premises kept as an open park for the benefit of said Grantees.”

It is settled that this restriction is an equitable servitude or easement passing with the conveyance of the premises to the original grantees and all those who subsequently claim under them in whole or in part. Sprague v. Kimball, 213 Mass. 380, 382. Riley V. Barron, 227 Mass. 325. The reference to the grantor’s Immediate predecessor in title neither enlarges nor restricts the grant. It is only for the purpose of identification of the premises and the limitation as to further fencing without his consent.

The question before us under the agreed statement of facts on which the case is submitted is the measure of damages, the amount of which is made dependent on the nature and extent of the restriction. The petitioner contends that the restriction is not only a prohibition against building, but there is “ a further and additional easement ... to have said premises kept as ‘an open park’ . . ., and that this right to an ‘open park’ enured to all persons ,who at the time of the taking in this case were living on and holding title to any of the lands remaining in” the common grantor at the date of the original deed as well as those claiming under Edward Dickinson and Luke Sweetser, to whose title the town which also owns land formerly a part of Thayer’s remaining lands, has conditionally succeeded. The respondent while conceding that she cannot enclose the land nor erect or place any building thereon, claims that it “was not subject to an easement consisting of the right to enter upon it and to resort thereto for rest, enjoyment and recreation; that is, that it was not subject to ‘ park rights ’ in the sense contended for by the petitioner.” The words are, to be “kept as an open park for the benefit of said Grantees.” It is obvious that there are no words of dedication to the public, nor does the context warrant such construction by implication. The agreed facts also are silent as to any oral statement of the grantor or of any one authorized to act in his behalf that he intended to provide a park for the benefit of the public, or of any acts by him as a landowner from which such intention fairly can be inferred. We are unable to say that the land in question has ever been set apart and dedicated to the public use. Attorney General v. Onset Bay Grove Association, 221 Mass. 342. It also becomes unnecessary to discuss the question whether the restriction can be construed as intended to cover the grantor’s adjoining lands. See Clapp v. Wilder, 176 Mass. 332; Lipsky v. Heller, 199 Mass. 310, 317.

The parties have incorporated in the agreed facts the record in a suit in equity brought by the petitioner and other interested parties against this respondent in which the scope of the restriction and her right to build on the land was in controversy. The master’s report, upon which a final decree unappealed from was entered, contains these findings and ruling: “At the time of the conveyance of the original Triangle lot from Thayer to Condit, Sweetser, Dickinson and Mack, I find that the restriction imposed was valuable to the respective lands of all the parties to the deed and that it was the intent of the grantor and grantees to benefit their respective lands thereby, and as a matter of law such restriction at the time imposed was appurtenant to the lands of all the parties to the deed and was forever.” It therefore must be held that not only the land of the grantees but the remaining or adjoining lands of the grantor were, and continued to be within the protection of the restriction. Butrick, petitioner, 185 Mass. 107, 113. Barnes v. Huntley, 188 Mass. 274. C. A. Briggs Co. v. National Wafer Co. 215 Mass. 100, 108, 109. While the restriction, as we have said, attached and became appurtenant not only to the estate of the several grantees but to any part or portion into which those estates might be divided, the record contains no reference to any act of the grantor or of the grantees or of any person claiming under them showing or tending to show any entry upon the land for the purposes of recreation, or of its improvement or beautification. We are left to the bare wording of the instrument and the circumstances existing at the date of the deed. The space undoubtedly was to be kept open furnishing light, air and prospect to the surrounding lands of the grantor and the grantees, and no limitation is placed upon the right of those upon, whom such right is conferred to resort to the land for recreation and enjoyment in so far as its physical condition permitted.

We are accordingly of opinion that, the land being subject to such rights, the respondent under the agreement of the parties is entitled to judgment “in the sum of thirty-five hundred dollars with interest from March 31, 1916, and for her costs.”

So ordered.