First National Bank v. Portsmouth Savings Bank , 71 N.H. 547 ( 1902 )

The mutual covenants contained in the agreement of February 8, 1870, in which it was provided "that no change in the front of said building or in the principal entrance thereto shall be made by either party wit, hour the consent of the other," are to be construed as grants of negative easements for the benefit of the respective properties; and as the parties to this action and the agreement are the same, it is unnecessary to determine whether the covenants run with the land, and would be obligatory upon the successors and assigns of the contracting parties, though not named. Foster v. Foster, 62 N.H. 46, 55; Harriman v. Park, 55 N.H. 471; Burbank v. Pillsbury, 48 N.H. 475; Morse v. Aldrich, 19 Pick. 449, 453; Whitney v. Railway, 11 Gray 859; Richardson v. Tobey, 121 Mass. 457; Norcross v. James, 140 Mass. 188; King v. Wight, 155 Mass. 444; Whittenton Mfg. Co. v. Staples, 164 Mass. 319; Columbia College v. Lynch, 70 N.Y. 440,444.

Similar restrictions are commonly found in agreements of this nature, and it cannot be doubted but that the purpose of those here in question was legitimate. The only restraint upon such contracts is that they shall be reasonable and lawful. In whatever form such restrictions are placed upon real estate by the terms of grant, whether by mutual covenants, by a condition, covenant, reservation, or exception in a, deed, or by words which give to the acceptance of a deed by a grantee the force and effect of a parol agreement, they are binding as between the parties to the contract, and can be enforced both at law and in equity. Foster v. Foster, supra; Burbank v. Pillsbury, supra; Emerson v. Mooney, 50 N.H. 315.

While it is recognized law that an easement in real estate can be acquired only by deed, or by prescription which presupposes a grant (Hallett v. Parker, 68 N.H. 598; Tibbetts v. Tibbetts, 66 N.H. 360; Batchelder v. Hibbard, 58 N.H. 269; Houston v. Laffee, 46 N.H. 505), it is held that an easement, whether acquired by grant or prescription, may be extinguished, renounced, or modified by a parol license granted by the owner of the dominant tenement and executed by the owner of the servient tenement (Morse v. Copeland, 2 Gray 302; Boston Providence R. R. v. Doherty, 154 Mass. 314); and that when the parol license has been executed by the servient owner, a release of the easement may be decreed upon a bill filed for that purpose. And this is true whether the easement is affirmative or negative in its nature. Joyce v. O'Neal, 64 N.H. 91, 92. The important question therefore in this case is, whether the plaintiffs' easement in the defendants' property has been extinguished, renounced, or modified by the mutual agreements under which the front to the first story of the building was remodeled and changed, and the common entrance to the banks "done away with."

In the interpretation of contracts, an equitable result is generally reached if due effort is made to ascertain the fact of the parties' intention from competent evidence by balancing probabilities. Smith v. Furbish, 68 N.H. 123, 139. The plaintiffs' bill discloses that in 1881, the parties by common consent remodeled and changed the "first story front" of the building, and did away with the common entrance to their banks, making entirely separate and independent entrances thereto. These changes were substantial; they altered the appearance of the entire front, and established new approaches and entrances to the building. The front wall to the first story of the main portion of the building was brought forward flush with its wings; independent entrances to the banks were made in what previously constituted the wings; and an entrance and stairway were made to the offices above, in the front thus brought forward. Under these circumstances, it is more probable than otherwise that the parties understood that they were extinguishing the restrictions so far as they related the common entrance and the front of the first story of the building, and such was the legal effect of their acts.

While this may not be true of the restrictions upon the balance of the front of the building, it does not necessarily follow that an injunction should issue restraining changes therein. A court of equity does not enjoin the performance of every contract, even where specific execution is found to be its legal intention effect. It gives or withholds such decree according to its discretion, in view of the circumstances; and a prayer for relief is granted when it. would be inequitable to do so. 2 Sto. Eq. Jur. (13th ed.), ss. 742, 750; Jackson v. Stevenson, 156 Mass. 496, and cases there cited. The purpose of the agreement of 1870 was to preserve the appearance of the front of the building, including the principal entrance, as it then existed. Since then, changes of no substantial a nature have taken place as to virtually do away with that purpose; and inasmuch as the present state of the property has resulted from causes other than a breach of the restrictions, and their enforcement would apparently fall far short of effecting the purpose for which they were originally made, and tend to lessen the value of the defendants' property for business purposes, the question arises whether under all the circumstances equity injunction should issue restraining the defendants from charging the front of the second story of their building. This is a question of fact to be determined in the superior court. If it would be inequitable to grant the injunction, then the plaintiffs should be left to their remedy at law for any damages they may suffer by reason of changes in the front to the second story; otherwise, the injunction should issue restraining the defendants from making any changes therein.

While the entrance and stairway to the second story have been used in common for over twenty years, it is not alleged in the plaintiffs' bill that their use has been adverse and under a claim of right. On the contrary, their use, like their construction, pears to have been with the consent of the parties. Such being the case, neither party acquired a prescriptive right to use the other's half of the entrance and stairway (Taylor v. Gerrish, 59 N.H. 569, 571), and no right to their use could be acquired by parol. Tibbetts v. Tibbetts, and cases cited supra.

Exception overruled.

All concurred.