Greene v. Creighton , 7 R.I. 1 ( 1861 )

Construing the clause in question, in the deed of the Halsey heirs to the City of Providence, according to the apparent intent of the grantors, whose language it is, we are satisfied that it is a covenant between them, as owners, at the time, of all the lots adjoining Halsey street, for the benefit, of their said lots. They were in the act of dedicating to perpetual public use, as a highway, a strip of their land fifty feet wide at least, through its whole extent, and in the curving part, much wider, upon which their lots, on both sides of it, were to front; and made this further provision for air and light to their lots, for the common benefit. This, too, is the literal construction of the language employed by them; for they say, "that it is hereby expressly understood, covenanted and agreedby the grantors, for themselves, and their heirs and assigns respectively forever, that no building of any description shall, at any time hereafter, be erected, placed or put, within eight feet of Halsey street, on either side thereof." Certainly, this is a recital under their seals that such a restriction upon building was expressly agreed to by them, to be perpetually binding upon themselves, their heirs and assigns, although not expressed to be with the City of Providence, and is therefore their covenant. The absence of the usual words "and between," after "by," does not alter the signification of the sentence; since the word "agreed," of itself, imports mutuality, and this mutuality is confined, by the language used, to the grantors.

It is said that this covenant does not run with the land so as to impose the burthen of it upon the defendant, who derives title to the land by inheritance from his mother, one of the covenantors, or, so as to avail the plaintiff, his grantee of the land. Were the action brought upon this covenant, this suggestion might be entitled to consideration; but the action is brought upon the defendant's own covenant contained in his deed to the plaintiff; and the covenant in the deed of his mother and the other Halsey heirs to the City of Providence is merely brought forward as imposing a negative easement upon his inheritance, forbidding him to build within eight feet of Halsey street, and as proof, therefore, of the breach of his covenant against all incumbrances. Looking at the former covenant, as entered into by tenants in common, of lands possessed by them, to be laid out and sold or improved as house lots, and inserted in a deed dedicating a portion of these lands to the use of a highway, for the purpose, in conjunction with the highway, of making the lots more available and convenient as sites for residences; and considering, also, that it professes, for the common benefit, to impose the restriction in perpetuity upon the heirs and assigns of the covenantors, we are of the opinion, that it is to be construed as a grant, in fee, to each, of a negative easement in the lands of all, and as such, capable, upon the disturbance of the easement, of being enforced by the appropriate remedies at law and in equity. Brewster v. Kitchin, 1 Lord Raym. 317, 322; Barrow v. Richard, 8 Paige, 351; 1 Smith's Lead. Cas.; Spencer's Case, Am. Notes, 108 — 112.

In this view of the matter, it becomes of no importance to the plaintiff's right of action upon the covenant against incumbrances, in the defendant's deed to him, whether this last covenant be regarded as a mere supplement to the covenant for quiet enjoyment, upon which no cause of action arises until eviction, or what is tantamount to it, takes place; or whether it be regarded as broken by the existence of the easement the moment it was made. If the former, the threats of the adjoining proprietors, upon the plaintiff's attempting to build upon the line of Halsey street, to pursue him if he should, and the actual prevention thereby of his thus building, is a sufficient disturbance to enable him to maintain this action; and if the latter, no such disturbance was necessary.

We are, therefore, of opinion that the plaintiff is entitled to recover damages of the defendant, for a breach of the covenant of the latter against incumbrances, and will proceed to assess the plaintiff's damages upon the evidence already submitted, unless, as suggested at the argument, the parties desire to present further evidence upon that subject.

This case subsequently came before the court for the assessment of the plaintiff's damages. By the clear weight of the evidence submitted, it appeared, that the negative easement existing in favor of the several lot-owners on Halsey street in each other's lots, complained of by the plaintiff as a breach of the defendant's covenant, was a benefit, rather than an injury, to all the lots on the street, including that purchased by the plaintiff.

The plaintiff proved, however, that he was the owner of a lot on Benefit street, which abutted in the rear, at right angles, upon the rear of the lot purchased by him of the defendant, and that he bought the latter to use in connection with his Benefit street lot, to wit, to build a barn on the rear of his purchase, and to have a ten-feet gangway on the east side of it, for the convenience of, and access to, his Benefit street estate; that in ignorance of the restriction to build within eight feet of the front of Halsey street, he built his barn on the rear part of the lot on that street purchased of the defendant, and contracted for the building of a house on the front of the lot, within one foot of the line of Halsey street, and to lease it for five years, both contracts being in writing; that, by thus placing his house, there would be a distance of nineteen feet between the house on the Halsey street lot and the barn reserved by him for the use of his Benefit street estate; but that just as he commenced digging the cellar of his house, he learned the restriction, and was compelled to place his house back and within eleven feet of the barn, which so narrowed the yard in the rear of the house, and brought the latter so unpleasantly near to the barn, that, to satisfy and compensate his tenant of the house, under the contract for letting the same, he was obliged to make outlays upon it, additional to those stipulated, costing $507.21. This sum he claimed to recover of the defendant, as damages for the breach of covenant. It did not appear that the special uses for which the plaintiff bought the lot were known to the defendant at the time of sale, or formed any part of the basis of the contract between him and the plaintiff. The contracts for the building and letting of the house were made by the plaintiff about two years after his purchase.