Jenney Et Al. v. Hynes Et Al‪.‬

CROSBY, Justice. This bill in equity is brought by the owners of land on the corner of Commonwealth Avenue and Deerfield Street, in Boston, against the owner and the lessee of land on the corner of Commonwealth Avenue and Sherborn Street, to enforce certain equitable restrictions. A final decree has been entered in favor of the plaintiffs from which the defendants appealed. The case was referred to a master. The defendants' objections to his report were overruled and an interlocutory decree was entered confirming it and denying a motion for recommittal. With the exception of part of the testimony of two witnesses, the evidence is not reported. The question for decision is whether the final decree is warranted upon the facts found and those agreed to by the parties. A plan dated January 9, 1894, was introduced in evidence marked exhibit three. The estates of the plaintiffs and defendants are both on the Commonwealth Avenue side of block C, the plaintiffs' estate being marked on the plan 'Lot H' 'Reserved For Sale,' and the defendants' estate being lots twenty-two and twenty-three. All the lots in block C except the plaintiffs' are subject to certain restrictions established in 1896 to remain in force until January 1, 1950, for the benefit of all the land in that block including the defendants' land. It appeared that there were 'two sets of restrictions, one expiring in 1930 and one expiring in 1950,' and that 'they were the same restrictions only covering a wider area.' These restrictions prohibit the erection, placing or use on said land of any buildings other than dwelling houses or outbuildings to dwelling houses, the erection of stables of any kind and the use of any building as an apartment house, family hotel, or flats, and prohibit in design or construction any building to be fitted for occupancy by more than one family, or to be used for manufacturing, mercantile, or mechanical purposes.