Fournier v. Kattar , 108 N.H. 424 ( 1968 )

Per curiam.

On December 30, 1948, Joseph I. Melanson acquired the property in question from the Forest Trading Co. In February 1949, he prepared a plot plan which showed the entire shore line subdivided into 103 lots of various sizes and named “Castle Shores.” The remainder of the property, which had no shore frontage and consisted of about 600 acres, was not subdivided on the plan. This plan was recorded January 31, 1950. In May 1950 Melanson conveyed without restrictions Lots 101, 102 and 103 and twenty-three acres of backland adjoining Lot 103. One of these lots has been used for a marina and grocery store. Sometime around April 1952, F. A. Richardson, as agent for Melanson and with his approval, circulated a “Partial Price List,” entitled “Castle Shores” and dated April 1952, which listed 103 lots together with their dimensions and prices. Lots 101, 102 and 103 were listed as “sold” as were certain other lots. Twelve lots were marked “Reserved.” This price list included certain restrictions which it was stated were excerpted “from Standard Deed Form.” These restrictions after imposing certain set-back and building requirements stated in part as follows: “subject to the following restrictions which the grantee by acceptance of this instrument agrees for himself, his heirs, successors or assigns, to keep for the grantor and the succeeding owners of any and all portions of said property known as Castle Shores which lie within one thousand (1,000) feet of any part of the within described property, and all persons who shall acquire directly or indirectly, the grantor’s interest in the promotion and development of any part of said Castle Shores: — The premises conveyed hereunder shall be used for residential purposes only and the usual and natural uses in connection therewith. Not more than one dwelling shall be erected, permitted or maintained on the premises conveyed hereunder, which shall be designed for use by not more than one family, but this shall not be construed to forbid the construction and use of a bona fide guest house in connection therewith.”

Restrictions essentially the same as these were included by Melanson in some forty-eight deeds conveying waterfront lots, including those to the plaintiffs. Each deed referred to the recorded plans only for the purpose of identifying the lot conveyed.

At the time Melanson acquired the property, some of the “back-land” had been sold by his predecessor without restrictions. Melanson acquired this land either by purchase or exchange for waterfront lots. Melanson died in 1962 without ever having subdivided any of the backland into lots and not having sold twenty-eight of the waterfront lots. Eight of the twelve lots which had been marked “Reserved” on the price list had been sold with the standard restrictions. Melanson’s executors negotiated to sell the balance of Castle Shores to the defendant. Upon learning of this, plaintiffs ’ attorney advised the executor of their claim that the sale should be subject to the standard restrictions. The executors agreed but the defendant refused to purchase with restrictions. The executors then conveyed without restrictions by deed dated October 9, 1964, but not before the defendant was given notice by the plaintiffs through his attorney that they claimed the existence of mutual equitable servitudes.

The Trial Court found that the defendant had notice of plaintiffs’ claim prior to taking the deed, that the omission of the restrictions in the deed to him was immaterial, and that he acquired title “subject to an equitable servitude in favor of the plaintiffs in accordance with the so-called ‘standard restrictions.’ ”

After acquisition of the property the defendant announced plans to create five community beaches on certain waterfront lots for the benefit of prospective purchasers of back lots, and to provide playground - type structures, docks, wharves, parking areas and picnic facilities thereon. The areas proposed to.be used for these purposes involve only one of the four remaining lots originally marked “Reserved” on the price list.

The Trial Court decreed that the “standard restrictions” were “binding upon and applicable to all the remaining land conveyed by the Melanson Estate to the defendant” and enjoined and restrained the defendant from conveying any of the land without inserting the restrictions in each conveyance. No exceptions to these decrees are before us.

The Trial Court, however, ruled, subject to plaintiffs’exception, that the establishment by the defendant of community beaches and other recreational facilities on some of the unsold shore lots was not precluded by the restrictions. It pointed out that Melanson had reserved the right to create a means of access to and from all parts of the development without restriction to waterfront owners and found that the proposed uses • of waterfront lots were “in keeping with the uniform plan of development and ... the residential pattern which was adopted as part of the original general scheme ...” and that they were “ordinary and reasonable as well as natural and incidental to the general scheme calling for overall residential uses in a recreational area for the mutual benefit of the developer and owners.” The Court ruled that it would be inequitable “to deny back land lot owners within the development access to the lake, particularly in the absence of any credible evidence ... so restricting its use” and that it would also be inequitable and a hardship to preclude the developer from making the proposed uses.

We are of the opinion that the findings and rulings of the Trial Court are sustainable upon the record. Its decree enjoining the defendant from conveying any of the unsold land without incorporating in the deeds the so-called standard restrictions is not questioned by the parties. The development of the unsold land could be found to stand upon a different footing. The language of the restrictions indicated with reasonable clarity that die purchasers were agreeing to “keep” or comply with them, “for the grantor and the succeeding owners of any and all portions of said property known as Castle Shores . . . and all persons who shall acquire . . . the grantor’s interest in the promotion and development of any part” of the same.

While the evidence warranted the finding that the restrictions were understood to be for the reciprocal benefit of individual grantees inter se as a part of the general scheme of development, the emphasis of the restrictions was upon benefit “for the grantor” and succeeding developers of “any part” of the tract. That this was a factor in the Court’s decision is indicated by its several references to the intent to perpetuate the general scheme “for the benefit of the developer”; the express reservation by the grantor “for his own benefit and for the benefit of ‘succeeding owners’ ”; and “rights . . . reserved for the benefit of the original grantor and his successors in title . . . . ”

The understanding of the parties in this regard was highlighted by the testimony of the developer’s agent, Richardson, called as a witness by the plaintiffs, who testified that it was the developer’s understanding that the restrictions were to “apply to all lots sold” (Emphasis supplied), and that “prospective customers” were advised that they would so apply.

The evidence did not require a finding that property retained by the developer and not subsequently sold for house lots would be restricted to residential use. The understanding of the parties in this respect could be found to fall within the limitations stated in Nashua Hospital v. Gage, 85 N. H. 335, 341, and relied upon in Bouley v. Nashua, 106 N. H. 74, 79: “if there had been an agreement that giving [the] deed . . . also imposed upon [the grantor] an obligation as to his remaining land, one would naturally expect that it would have been expressed rather than left to dubious inference.” See also, Varney v. Fletcher, 106 N. H. 464, 468.

Since no such agreement restricting the developer himself to residential use was expressed in the deeds, and since the Court found no basis for so finding in the conduct of the parties or the surrounding circumstances (Bouley v. Nashua, supra, 78), an injunction against the recreational use, proposed by the defendant “for the benefit of all owners within the development,” was properly denied.

The plaintiff argues that the Trial Court’s findings and rulings were influenced by testimony improperly received, and should be set aside for that reason. (Smart v. Huckins, 82 N. H. 342, 347, 348; 2 Am. Law of Property, s 9.29, p. 418). We cannot so interpret the findings and rulings. The evidence in question consisted of testimony regarding conversations between Melanson and others concerning his understanding of the word “reserved,” and his practice with respect to “reserved” lots in other developments. The conversations occurred several years after the conveyances to the plaintiffs and others, when the plaintiffs were not present. Nor were they aware of the conversations. With respect to this evidence the Court made findings and rulings to which the plaintiffs seasonably excepted. The Court ruled that the “burden as to the meaning of the language used . . . rested with the plaintiffs,” and found there was “no clear or concise understanding” by the plaintiffs and the original developer as to the meaning of the word “reserved.” The Court further ruled that the plaintiffs failed to sustain their burden and found that “in any event” all but four of the reserved lots were sold at the time of the conveyance to the defendant.

In the light of the findings and rulings, and in particular the ruling that the plaintiffs had faded to sustain their burden of proving the significance of the “reserved” lots, only one of which is proposed to be used for recreational purposes, we see no reason to conclude that the Court relied upon the evidénce assailed by the plaintiffs, in concluding that the use proposed by the defendant would not violate any restriction binding upon him.

The plaintiffs’ request for a finding that the word “reserved” was not understood by the parties to mean that the lots were reserved “for the purpose of serving as community beaches in which rights could be granted to back lots” was not denied by the Trial Court, but was stated to have been “covered, in the Court’s opinion,” by his findings and rulings.

The findings and decree that the restrictions are “binding upon and applicable to” the land owned by the defendant were defined and applied by the further decree enjoining the defendant against future conveyances without incorporation of the standard restrictions-. They were qualified however by the findings and rulings that the restrictions do not preclude the use proposed by the developer, and by the decree enjoining the plaintiffs from interference with the “proposed development [by the defendant] of five . . . beach areas for the purposes” stated in the findings. We hold that these decrees are supported by the record.

Exceptions overruled.