Foster v. Foster , 62 N.H. 46 ( 1882 )

Restrictions and limitations upon the use of real property, in the form of covenants, restrictions, and conditions, inserted in a deed for the advantage of the grantor or the benefit of the adjacent lands, when reasonable and for a lawful purpose, are upheld and enforced at law and in equity. Reed v. Hatch, 55 N.H. 327; Coburn v. Coxeter, 51 N.H. 158; Hoyt v. Kamball, 49 N.H. 322; Burbank v. Pillsbury, 48 N.H. 475; Hunt v. Wright,47 N.H. 396; Gillis v. Bailey, 21 N.H. 149; Herrick v. Marshall, 66 Me. 435; Gray v. Blanchard, 8 Pick. 284; Parker v. Nightingale, 6 Allen 341; Sanborn v. Rice, 129 Mass. 387; Trustees v. Lynch, 70 N.Y. 440; Cowell v. Springs Co., 100 U.S. 55. Although regarded as not repugnant to the grant, stipulations of this character, imposing a restriction, duty, easement, or burden upon the estate granted, enforceable at law or in equity, constitute an incumbrance whether operating by way of covenant or condition; and it is conceded in this case that the restrictions contained in the deed of the Amoskeag Company to Bartlett, as to the erection and use of buildings on the lot, create an incumbrance on the land, and constitute a breach of the covenants in the defendant's deed to the plaintiff; but it is contended that the plaintiff is entitled to recover only nominal damages.

In Harlow v. Thomas, 15 Pick. 66, 69, the rule of damages for breach of the covenant against incumbrances is stated as follows: "If the covenantee has extinguished the incumbrances, he ought to recover the expenses necessarily incurred in doing it. If they remain, and consist of mortgages, attachments, and such liens on the estate conveyed as do not interfere with the enjoyment of it by the covenantee, he can recover only nominal damages. But if they are of a permanent nature, such as the covenantee cannot remove, he should recover a just compensation for the real injury resulting from their continuance." The rule as here stated is sustained by the general current of authority. Raw. Cov. (4th ed.) 289, 290, 291, and notes and cases cited. The reason of the rule is apparent. If the covenantee has extinguished the incumbrance, he should recover what it cost him to do it. If he has not removed it, and the incumbrance does not impair the present use and enjoyment of the land, but depends upon a contingency that may never happen, it is a mere technical breach of the covenant, for which he should be allowed no more than nominal damages, because he may never suffer actual damage from it. But if the incumbrance impairs the present use of the land, and is of such a character that the covenantee cannot remove it, he ought to recover damages for the actual impairment of the enjoyment of the estate, and the weight upon the land which diminishes its value. The former class of incumbrances embraces mortgages, rights of dower, attachments, and liens contingent in their nature, which do not interfere with the present actual enjoyment of the land by the covenantee. The latter class includes easements, servitudes, unexpired terms, and restrictions not depending on a contingency, permanent in their character, and constituting a present and continuing restriction upon the use and enjoyment of the premises.

The present case falls within the latter class. The condition in the deed of the Amoskeag Company imposes a restriction upon the use of the land in respect of the erection of buildings and the occupancy of the same until the year 1898. It is an incumbrance upon the land in the nature of a negative easement, which the plaintiff cannot remove as a matter of right. Its existence constitutes a breach of the defendant's covenant against incumbrances. It is not a mere technical encumbrance, which does not interfere with the present enjoyment of the land, like a right of dower, which may never have any operative force by reason of depending upon a contingency that may never occur. The weight of it is as oppressive now as it ever can be. It is a present and continuing impairment of the free enjoyment of the land, and a legal obstruction to the exercise of that dominion over it to which the plaintiff, as the lawful owner, is entitled. The restriction may not interfere with the use of the land for many purposes, but it is an absolute prohibition of its use for others, for which the plaintiff might otherwise lawfully use it. As the owner, he would have the right to use it for any lawful purpose; but by reason of this incumbrance, its use in the prohibited mode would work a forfeiture of the entire title. The damages can be estimated as well now as at the end of twenty years. They may be inconsiderable, or merely nominal, and they may be substantial; but it is for the jury to determine the amount of damages which the plaintiff ought to receive.

The evidence as to the plaintiff's intention in purchasing the premises was incompetent. In an action of covenant broken, the intention of the covenantee in making the purchase cannot ordinarily be shown for the purpose of increasing the damages, unless it entered into and formed a part of the consideration between the parties. Raw. Cov. 251, 291, note; Batchelder v. Sturgis, 3 Cush. 201, 204. The evidence, offered to show the difference in the market value of the land occasioned by the incumbrance was admissible. Wetherbee v. Bennett, 2 Allen 428.

Case discharged.

STANLEY, J., did not sit: the others concurred.