
    James Skinner & another vs. Andrew N. Shepard & others.
    Suffolk.
    Nov. 11, 12, 1880.
    Jan. 6, 1881.
    Lord & Soule, JJ., absent
    Land, bounded on one side by a street and on another side by a railroad, was conveyed “ subject to the condition that no building shall ever be placed on that part of the same lying within twenty-five feet of said street, and also that the present occupant of a part of the premises near said railroad for a lumberyard shall be allowed the time until the first day of October next after the date hereof to remove his lumber and evacuate the premises, but no longer without the consent of said grantee.” Held, that both clauses of the provision took effect only by way of restriction; and that the restriction as to building, in the absence of evidence that it was imposed for the benefit of other land, must be construed as a personal covenant merely with the grantor, which his heirs could not enforce after his death.
    Contract for breach of the covenants in a deed of land in Woburn from the defendants to the plaintiffs. Trial in this court, before Lord, J., who reported the case before verdict for the determination of the full court. The facts appear in the opinion.
    
      S. B. Ives, Jr. G-. W. Morse, for the plaintiffs.
    
      T. S. Sweetser, (J. P. Bale with him,) for the defendants.
   Morton, J.

On April 16, 1859, Willis Bueknam, now deceased, conveyed the land in question to Harris Munroe and others by a deed, which bounded it on one side by Green Street and on another side by the Woburn Branch Railroad, and which, after the description and before the habendum, contained this provision: “ Said premises are hereby conveyed subject to the condition that no building shall ever be placed on that part of the same lying within twenty-five feet of said Green Street, and also that the present occupant of a part of the premises near said railroad for a lumber-yard shall be allowed the time until the first day of October next after the date hereof to remove his lumber and evacuate the premises, but no longer without the consent of said grantees.” The land by mesne conveyances came into the possession of the defendants, who conveyed it to the plaintiffs by a warranty deed contai" ling the usual covenants.

The words in the deed of Bucknam, above quoted, are sufficient to create a condition, the breach of which would forfeit the estate, if such clearly appears to have been the intention of the grantor; but they are not to have that effect, if his intention from the whole deed appears to have been otherwise.

We think that the last clause of the conditional paragraph could not have been intended as a technical condition. It relates merely to an occupation of a part of the premises for a short time, and is in its nature a personal stipulation of the grantees to permit such occupation, rather than a condition by a breach of which the estate should be wholly forfeited. The words “ subject to the condition ” apply equally to both clauses of the paragraph, and there is no reason for giving them a more technical or. a different meaning when applied to the first clause than that which they have as applied to the second. We are of opinion that both clauses can have effect only as restrictions. Episcopal City Mission v. Appleton, 117 Mass. 326.

Undoubtedly Willis Bucknam might have enforced the first restriction while he lived; but there is nothing in the deed which shows that the parties intended that the restriction as to building within twenty-five feet of Green Street should create a servitude or easement in the granted land, which should attach to and be an appurtenance to any neighboring land.

The mere fact which the plaintiffs offered to prove, that Willis Bucknam, at the time when he conveyed to Munroe and others, was the owner of land separated from the estate granted by the Woburn Branch Railroad, is not sufficient to show that the object of the restriction was to benefit this land. In the absence of any words in the deed to this effect, or any reference to a plan showing a general scheme of improvement, the grantees took their estate without any notice, express or constructive, that the restriction was intended for the benefit of the adjoining estate. For anything that appears, it may have been intended only for the benefit of the grantor and for his personal convenience. Jeffries v. Jeffries, 117 Mass. 184. Jewell v. Lee, 14 Allen, 145. Badger v. Boardman, 16 Gray, 559.

We are therefore of opinion, that the restriction as to building must be construed, not as a condition which the heirs of the grantor can enforce, but as a personal covenant merely with the grantor; and that, after his death, it created no incumbrance or servitude upon the estate for which the plaintiffs can maintain this action.

Judgment for the defendants.  