197 N.E. 224 (Mass. 1935)
On September 5, 1906, title to a tract of land at Brier Neck in Gloucester was registered in the name of Luce, from whom it soon passed to Shackelford.1 The tract was bounded northerly by a line through a pond near Thatcher Road, easterly by other land, southerly by the Atlantic Ocean, and westerly by Witham Road.2 The northerly part including what became lot D was low and marshy, while the southern part rose to a hill and slope suitable for summer residences.3
In 1907, the land south of Thatcher Road was divided into about a hundred building lots.4 Between July 8, 1907, and January 23, 1923, almost all these lots were sold by Shackelford with uniform restrictions limiting each to one dwelling house costing at least $2500 and prohibiting outbuildings with privies without consent.5 On June 15, 1923, the remaining unsold land south of Thatcher Road was conveyed to J. Richard Clark subject to similar restrictions.6
A revised plan in 1919 divided the northerly marshy land into parcels C, D, and E.7 On January 23, 1923, Shackelford conveyed these parcels to Robert C. Clark subject to restrictions allowing only one dwelling house per parcel costing at least $2500 unless otherwise approved.8 On February 18, 1933, Robert C. Clark conveyed the larger part of lot D to defendant Van Dam subject to the restrictions insofar as they remained in force.9
The defendants erected a large building on lot D for selling ice cream and dairy products and operating as a common victualler.10 The plaintiffs, each owning a lot south of Thatcher Road with a summer residence, brought suit in Middlesex County seeking an injunction against the defendants for violating the restrictions.11
Whether a scheme of restrictions existed that included both the plaintiffs' lots south of Thatcher Road and lot D north of the road?12
A scheme of restrictions is shown by the substantial uniformity of the restrictions upon the lots included in the tract.13 The existence of such a building scheme has often been relied on to show an intention that the restrictions imposed upon the several lots shall be appurtenant to every other lot in the tract included in the scheme.14 Neither the restricting of every lot within the area covered, nor absolute identity of restrictions upon different lots, is essential to the existence of a scheme.15 Extensive omissions or variations tend to show that no scheme exists.16
Yes. The established facts establish that Shackelford divided the land south of Thatcher Road into about a hundred building lots in 1907.17 Shackelford sold almost all of them between 1907 and 1923 with uniform restrictions limiting each lot to one dwelling house costing at least $2500.18 The revised plan of 1919 divided the northern marshy land into parcels C, D, and E.19 The January 23, 1923 deed from Shackelford to Robert C. Clark imposed similar restrictions on those parcels.20 Lot D lies at the gateway to the entire development.21 Its use tends strongly to fix the character of the tract.22 The northern land appeared on all plans from the beginning even though division was delayed until 1919 due to a belief it could not be sold rather than any intent to reserve it for nonresidential purposes.23 The court therefore concluded that the scheme from the beginning contemplated that no part of the Brier Neck tract should be used for commercial purposes.24 The 1923 restrictions on lot D were imposed in pursuance of that original scheme.25
The plaintiffs own lots south of Thatcher Road on which they have built summer residences.26 The defendants erected a large building on lot D for the sale of ice cream and dairy products and operation as a common victualler.27 The suit was brought in Middlesex County although the land is in Essex County.28 These facts confirm that the uniform restrictions and the inclusion of lot D within the overall development demonstrate the existence of a single scheme covering both the southern lots and lot D.29
A scheme of restrictions existed that included both the plaintiffs' lots south of Thatcher Road and lot D north of the road.30
Whether the restrictions imposed on lot D in the January 23, 1923 deed were intended to be appurtenant to the plaintiffs' lots?31
A restriction, to be attached to land by way of benefit, must not only tend to benefit that land itself but must also be intended to be appurtenant to that land.32 In the absence of express statement, an intention that a restriction upon one lot shall be appurtenant to a neighboring lot is sometimes inferred from the relation of the lots to each other.33 The existence of a building scheme has often been relied on to show an intention that the restrictions imposed upon the several lots shall be appurtenant to every other lot in the tract included in the scheme.34
Yes. The scheme included the lands of the plaintiffs and of the defendant Van Dam from the time sales began in 1907.35 Therefore the restrictions imposed on lot D in the 1923 deed were intended to be appurtenant to the plaintiffs' lots.36 The uniform restrictions across the tract and the position of lot D at the entrance to the development establish that the benefit of the restrictions on lot D runs to the southern lots owned by the plaintiffs.37
The restrictions imposed on lot D in the January 23, 1923 deed were intended to be appurtenant to the plaintiffs' lots.38
Whether plaintiffs whose lots were conveyed before January 23, 1923 could enforce the restrictions later imposed on lot D?39
An earlier purchaser in a land development has long been allowed to enforce against a later purchaser the restrictions imposed upon the latter by the deed to him in pursuance of a scheme of restrictions.40 Earlier as well as later purchasers of lots within the area covered by the scheme acquire such an interest in the restrictions that the common vendor cannot release them.41
Yes. The plaintiffs whose lots were sold before January 23, 1923 can enforce the restrictions later imposed on lot D because the scheme existed when sales began in 1907.42 The 1923 restrictions were imposed in pursuance of that scheme.43 The rationale allowing earlier purchasers to enforce later restrictions under a building scheme applies directly to these facts.44 All plaintiffs have standing regardless of when their individual lots were conveyed.45
Plaintiffs whose lots were conveyed before January 23, 1923 could enforce the restrictions later imposed on lot D.46
Whether the thirty-year statutory limit on the restrictions began to run from the 1907 conveyances or from the January 23, 1923 conveyance of lot D?47
G. L. (Ter. Ed.) c. 184, § 23 provides that restrictions, unlimited as to time, shall be limited to the term of thirty years after the date of the deed or other instrument creating them.48 No restriction existed upon lot D until the January 23, 1923 conveyance.49 Registration under G. L. c. 185, § 57 was the act of conveyance.50
No. The thirty-year statutory limit on the restrictions began to run from the January 23, 1923 conveyance of lot D rather than from the 1907 conveyances.51 This is because no restriction existed on lot D until Shackelford conveyed the northern parcels to Robert C. Clark on that date.52 The final decree must therefore be modified to limit the injunction to the period prior to and including January 23, 1953.53
The thirty-year statutory limit on the restrictions began to run from the January 23, 1923 conveyance of lot D.54