Easterbrook v. Hebrew Ladies Orphan Society , 85 Conn. 289 ( 1912 )

Both parties derive title through a trust deed which laid out a private park, called a "square," with streets around its four sides and lots fronting thereon, and provided for the maintenance of the streets and square by making it a charge upon the lots. One covenant restricted the building to be erected upon each of the twelve lots on two sides of the square to any except "a handsome two story dwelling house." Another prohibited the carrying on upon all of the sixteen lots surrounding the square of certain designated occupations and concluded, "or any brewery, distillery, public museum, theatre, circus, place for the exhibition of animals or any other trade or business, dangerous or offensive to the neighboring inhabitants."

The defendant, with full knowledge that the plaintiffs intended to enforce this covenant against it, purchased the three lots at the west end of the square, and purposed using them for a home for orphans and aged persons. The finding is that there has been no such change in the neighborhood that the restrictions of this covenant are no longer enforceable in equity. The only question of serious moment in the case is whether a home for orphans and aged persons is within the prohibition of the restriction "or other trade or business, dangerous or offensive to the neighboring inhabitants."

The finding is that the proposed use of the premises is offensive to the neighboring inhabitants. And the facts detailed show that this conclusion is not an unreasonable one. The question thus narrows to whether a home for orphans and aged persons is a "business" as the term is used in this restrictive covenant.

The ultimate object is to give the word such an interpretation as will carry out the intention of the parties to the deed. Seery v. Waterbury, 82 Conn. 567,569, 74 A. 908. In order to ascertain and carry out this intention, courts have adopted certain rules of construction. Language is to be taken in its ordinary and natural meaning in connection with the situation and surrounding circumstances. If the language is capable of two or more meanings, and doubt remains after all legitimate aids have been used, the grant should be taken most strongly in favor of the grantee and against the grantor. Sweeney v. Landers, Frary Clark, 80 Conn. 575, 580, 69 A. 566. If a particular enumeration is followed by general descriptive words, and no contrary intent appears, the latter will be limited in their scope to matters and things of the same general kind or character. These rules were adopted to aid in carrying out the intention of the parties; they cannot be invoked to defeat it. The intention appears as a matter of fact without the aid of these rules, and, properly applied, the rules of construction support this intention.

Another rule of universal applicability and primary importance is that where the parties have for many years placed a practical construction upon the meaning of a restrictive covenant, open to two constructions, this will, in the absence of strong proof of a contrary intention, go far to establish this as the construction intended by the parties. Watson v. New Milford,72 Conn. 561, 565, 45 A. 167. The majority opinion rests its conclusion mainly upon the rule of construction referred to, that the use of the word "business" in association with trade and in connection with other enumerated occupations makes it clear that the use of the word "business" includes all gainful occupations, the obnoxious features of which are within this restrictive covenant.

This is a misconception of the rule. Applied in its broadest sense, it would limit the word "business" to kinds of business of the same general kind or character as trade and the particularly enumerated occupations. It would not extend its use beyond their scope. "Trade," in its ordinary sense, means buying and selling. These enumerated occupations include such as are dangerous, apt to become nuisances, productive of noise, offensive to the moral sense of a large class of people, and such as gather large numbers of people. Neither of these classes, except the public museum, would include that vast number of occupations in which men gain their livelihood which are neither trade nor the occupations specified.

Because these occupations are gainful, it does not follow that the word "business" includes merely gainful occupations; on the contrary, this rule would limit business to occupations of the kind and character specified and exclude all others. If this was an instance for the enforcement of this rule of construction, and the word "business" were to include only the kinds of business particularly named or described, it could not properly be confined to gainful pursuits, since one of the enumerated classes is a public museum. A "museum" is "a repository or a collection of natural, scientific, or literary curiosities or objects of interest, or of works of art." Webster's New International Dictionary. In the Bibliography of Museums we find a classification which appears to have always obtained in this country: the public and the private museum, the public conducted through philanthropic motives, the private sometimes through philanthropy, more often for individual or institutional gratification or benefit, and infrequently for commercial motives. In early days our principal cities had each a public museum founded and supported by private generosity. The earliest collection is said to have been that formed at Norwalk, Connecticut, prior to the Revolution, which President Adams visited; his interest culminating in the founding of the American Academy of Arts and Sciences. Later, other museums were founded and maintained by private or governmental bounty and open to the public. So that in 1834 we had in this country both public and private museums. A similar distinction existed between the public and the private libraries. Neither the public museum nor library was operated for a profit.

What was true here was true throughout the civilized world. There were in New York City, in 1834, at least two places of amusement for the exhibition of waxworks, curiosities, and animals. These were commercial enterprises of a private character. They were called "museums," as, Scudder's Museum. In the sense of the definition they were not museums. Neither then, nor at any time before or since, have museums of this kind been designated as public museums. They had none of the characteristics of the public museum, nor, indeed, of the many private museums not conducted for gain. So that this covenant specifically restricts a use by a business activity of a philanthropic character, and if the word "business" is governed in its meaning, as the majority opinion holds, by the enumerated occupation, public museum, it must include those businesses which are not conducted for gain.

The parties intended to make of the tract included in the trust deed a residential section of the better class. For this purpose the large square was laid out, a place of beauty, recreation, and health for the benefit of those living around it, adding appreciably to the value of each adjoining lot. It is our duty to so construe the covenant against business that this intention may be fulfilled.

In its more limited sense, the word "business" is used to denote occupations carried on for pecuniary reward. In its more general or common use, it denotes not only all gainful occupations, but all occupations or duties in which men engage. Rolls v. Miller, L. R. 27 Ch. Div. 71, 88; Bennett v. Hebbard, 74 N. H. 411,68 A. 537; Semple v. Schwarz, 130 Mo. App. 65,109 S.W. 633. The enumeration of certain occupations, and then adding the generalization "or any trade or business," was plainly intended to cover every form of human activity. Business is not used in the sense of trade, nor intended to be confined to the classes enumerated. It has an individual meaning and existence. And this the majority opinion concedes when it extends its meaning beyond trade and the scope of the enumerated occupations to every form of gainful activity. And the authorities give to the word when used in such a covenant this individual meaning.

Which meaning of the word "business" will best promote the purposes of this deed preserving the residential character of this square and keeping out activities dangerous or offensive to the neighboring inhabitants? The narrow view, confining it to trade and to occupations of the enumerated character, or to gainful occupations, thus opening the square to hundreds of activities which may prove dangerous or offensive to the neighboring inhabitants, although belonging to no gainful pursuit, by bringing crowds within the square, to disturb its peace, overrun its park, diminish the value of the lots and residences, and thus negate the purposes of the trust deed; or the broader view of business, which would keep out every form of activity, dangerous or offensive to the neighboring inhabitants, exercising a reasonable judgment? There can be but one answer. The plain intent of the deed should not be defeated through the use of rules of construction.

The practical construction of the parties is all but controlling in cases of ambiguity. From the date of execution of the trust deed to this action, seventy-six years, all of the owners of these lots fronting on the square have construed the word "business" in this broader sense, and no business of any kind, unless we should except that of a doctor, has ever invaded this square. In 1893, through condemnation proceedings, four of the lots on the south side of the square were taken for a high school by the city of New Haven, and the defendant's grantors and all other owners of lots affected by the trust deed were parties to the condemnation proceedings and were awarded damages for the loss of their easements. As the school was not carried on for a profit, damages must have been awarded upon the theory that the restriction against business included activities not gainful. This accorded with the practical construction always placed on this covenant. Under the construction of the court, it must follow that the city was under no liability to pay these damages, and that the lot-owners had no legal or moral right to receive them.

The work conducted by the defendant must be done by its paid officers or employees. As to these, this is the business of helping conduct a home for orphans and aged persons. If they are engaged in a business, why is not the joint result of their efforts a business? Those who own this institution do not live in it; those who live in it are either paid employees or lodgers paying a part of the cost of their maintenance. The institution is a charity; it is also a "business" in the broad sense of the term.

Suppose the construction of the court stands. Then a private school for twenty is within the restriction, because conducted for a profit, while a public school of two thousand is not, because not conducted for a profit. Then a private sanitarium for twenty is within the restriction, while a public asylum for the insane with two thousand patients is not. But it is not necessary to multiply examples to demonstrate that so narrow a construction of the word "business" would defeat the very purposes of the trust deed and convert the square into a noisy neighborhood, and fill its streets and park with a multitude and perhaps with many undesirable persons.

It has, we believe, been all but uniformly held that the term "business" in such a covenant was not restricted to its associated term "trade" nor confined to the named occupations connected with it, nor confined exclusively to occupations pursued for gain. This was the law of England before this trust deed was executed, and we think the covenant in question was taken from those in use in New York, and they in turn substantially from England. Presumably its use in this country by expert conveyancers was with full knowledge of the construction placed upon the covenant by the English courts. At the foundation of all these decisions is the controlling issue: Shall the contracts of men, made within the law, be upheld and their intention as manifested by their contracts be fulfilled?

In Doe, dem. Bish v. Keeling, 1 Mau. Sel. 95, 99, the covenant was against "any trade or business whatsoever." Lord Ellenborough, C. J., said: "The intention of the covenant was, that the house should not be converted to any purposes which might be likely to annoy the neighborhood, and by that means to depreciate its value at any future period." In Bramwell v.Lacy, L. R. 10 Ch. Div. 691, the restriction was against carrying on "any trade, business, or dealing whatsoever, . . . which may be or grow to the annoyance, damage, injury, prejudice, or inconvenience, of the neighboring premises." The defendants operated a hospital for poor persons. It was a charity, though about half of its patients paid a small charge. The Master of the Rolls, Jessel, said (p. 694): "The first question is, is this a `business' or `in the nature of a business'? I have no doubt it is. . . . The question whether it is a business carried on for the purpose of profit or not, is not, in my opinion, material." In Rolls v. Miller, L. R. 27 Ch. Div. 71, the covenant was that lessees should not carry on "any trade or business of any description whatsoever." The defendants used the premises as a "Home for Working Girls." It was a charity. On appeal, Cotton, L. J., said (pp. 85, 86): "It is not essential that there should be payment in order to constitute a business. . . . It might well be that the defendants if they liked to do this in a house which they occupied might do so, but where they do so in a house in which they pay a superintendent in order to receive the girls, these girls are really lodgers . . . Although the lodging is given gratuitously, what is being done must be considered as carrying on the business of a lodging-house." In Semple v. Schwarz,130 Mo. App. 65, 69, 109 S.W. 633, the covenant was, "nor shall said lot or any part thereof ever be used or occupied for trade or business of any kind whatever." The court said (p. 77): "The covenantor evidently, from the very language used, intended to exclude from the lot all and every kind of business and every occupation or calling which can, within the broadest definition of the term, be classed as business. Any other construction . . . would do violence to its language and tend to defeat its evident purpose."

The courts of New York have given the word "business" in similar covenants the same construction.Rowland v. Miller, 139 N.Y. 93, 34 N.E. 765; Barrow v.Richard, 8 Paige Ch. (N. Y.) 351; Shryock Rowland v. Latimer, 57 Tex. 674; Haskell v. Wright, 23 N.J. Eq. 389 . These are not cases of nonprofit activities, but they show the construction given the word "business" in similar covenants.

In Evans v. Foss, 194 Mass. 513, 80 N.E. 587, the court say of a similar covenant: The purpose of the restriction was to exclude business of any kind that might prove offensive or injurious to the character of adjoining lots or of the immediate neighborhood.

That was the purpose of the covenant before us. It is one not opposed to public policy and should be enforced. 2 Devlin on Real Estate (3d Ed.) § 991b, p. 1872.

In my opinion there is error in the judgment complained of.