The plaintiff is the owner of Lot B on Land Court Subdivision Plan No. 15816B and two adjoining lots of unregistered land on Washington Street in Attleboro in the County of Bristol. The premises are the site of a motel known as the State Line Motor Inn. Immediately south thereof is the right of way of the Boston & Providence Railroad Corporation. The defendants' land adjoins that of the Railroad, appears from said Land Court plan to straddle the state line but is known as 805 Broadway in Pawtucket, Rhode Island, and is the site of a diner known as the State Line Restaurant. The defendants formerly owned both properties, and in 1963 conveyed that of the plaintiff to Stateline Motor Inn, Inc. by deed dated July 3, 1963, recorded with Bristol North District Registry of Deeds in Book 1425, Page 1039 and also registered with the Bristol North Registry District of the Land Court. The deed imposed the following restriction:
That the grantee herein shall not use the premises conveyed for the preparation, dispensing, selling or serving of food or alcoholic beverages without having first acquired the written consent of the grantors or the survivor(s) of them so to do.
The plaintiff alleges that the premises were acquired by his parents Fred D. Knight and Lillian M. Knight by deed dated February 8, 1968, recorded in Book 1515, Page 432 and registered as Document No. 11486; that they are both deceased and that he inherited the motel property from his mother, a surviving tenant by the entirety. The complaint also claims that neither he nor his parents were stockholders, officers or directors of Stateline Motor Inn, Inc. or otherwise connected with it.
The certificate of title issued by said Registry District to the plaintiff's parents [Note 1] contains the following paragraph:
"This conveyance is made subject to the restriction in the deed recorded in Book 1425, Page 1039 pertaining to preparation, dispensing, selling or serving of food and alcoholic beverages."
The complaint was filed pursuant to G. L. c. 240, §1OA for a determination as to whether, in what manner and to what extent the restriction is enforceable. The plaintiff thereafter moved for summary judgment, and a hearing was held at the Land Court on August 10, 1978 at which the parties were represented by counsel and the motion argued. [Note 2] At the hearing the defendants filed a motion to amend their answer to add a claim of unfair competition. This motion was not argued but would appear to raise an issue over which this Court has no jurisdiction and which should be presented in another forum at an appropriate time. See Tiffany & Co. v. Boston Club, Inc., 231 F. Supp. 836 (D. Mass. 1964); Massachusetts Mutual Life Insurance Co. v. Massachusetts Life Insurance Co., 356 Mass. 287 (1969).
At the outset we are met by the question of the law which should be applied, that of Massachusetts or of Rhode Island. The defendants contend that the restriction was imposed for the benefit of their remaining land which is principally located in Rhode Island, but neither party argued the question of the applicable law. Their assumption was that the law of this Commonwealth would be controlling. No Rhode Island statute or decision has been brought to my attention. See G. L. c. 233, §70. Accordingly, I look only to local law. Wrentham Co. v. Cann, 345 Mass. 737 , 741 (1963); Commercial Credit Corp. v. Stan Cross Buick, Inc., 343 Mass. 622 , 624-25 (1962); Tsacoyeanes v. Canadian Pacific Ry., 339 Mass. 726 , 727-28 (1959).
The law of this Commonwealth has a peculiar twist insofar as covenants not to compete are concerned. Whether a covenant restricting competition touches and concerns land not part of a common scheme so as to bind a future grantee is governed by the Norcross v. James, 140 Mass. 188 (1885); Shade v. M. O'Keefe. Inc., 260 Mass. 180 (1927); and Shell Oil Co. v. Henry Ouellette & Sons Co., 352 Mass. 725 (1967), trilogy. It seems apparent from the latter decision that it was only the Court's concern that the conveyancing bar had relied upon the earlier decisions which kept the Court from overruling its earlier holdings, and it seems predictable that this step will come in an appropriate case. The Shell Oil court noted that the prevailing law in Massachusetts was still Norcross, which held "principally (1) that a restriction of the use of land for the competitive benefit of adjacent land does not directly concern the use of the dominant parcel and operate to its advantage; and (2) that the benefit of the restriction will not so pass by a deed of the dominant parcel to a successor in title of the original grantee of the dominant parcel as to permit that grantee, even in equity, to enforce the restriction at least as against a successor in title of the owner of the servient parcel who imposed the original restriction." Id. at 728-29. The Court's opinion, however, clearly indicates a lack of commitment to the Massachusetts rule by citing numerous authori- ties who criticize the rule and by directly stating twice that, if the Court were not bound by precedent, it might adopt another view. Id. at 729-30. Yet the Court to date has refused to overrule Norcross, primarily it seems because of past reliance by attorneys and their clients upon the early line of cases. Rather, the Court put the bar on notice that future reliance upon the Massachusetts rule would be impolitic since it may be overruled in the future if the Supreme Judicial Court is confronted with a case that satisfies the criteria of footnote 8 of Shell Oil:
We need not now decide what result should be reached in the case of a reasonably limited covenant (of similar import) hereafter made, which shows clearly the parties' intention that the burden and benefit of the covenant are to run to successors in title of the covenantor and the covenantee. We do not now overrule Norcross v. James and Shade v. M. O'Keefe, Inc. prospectively or otherwise. See United States ex rel. Angelet v. Fay, 333 F. 2d 12, 16-17 (2d Cir.), affd. 381 U. S. 654; Leach, Property Law Indicted, pp. 14-31. See also Cardozo, Nature of the Judicial Process, 142-156, and Growth of the Law, 117-126. We can consider whether to do so when there is before us a case arising upon a covenant made in the future. In the meantime, application of the pertinent legal principles may have been affected by legislation.
The Court has not as yet reconsidered the Massachusetts rule since the latest case of significance in this area, Gulf Oil Corp. v. Fall River Housing Authority, 364 Mass. 492 (1974), was decided on other grounds. [Note 3]
The restriction in the present case does not meet the criteria suggested in Shell Oil. It was imposed before the decision in that case. Neither does it clearly show the intention of the parties that it is to run with the plaintiff's land for the benefit of that of the defendants. See Bargain Center, Inc. v. Howard Johnson Co., Land Court Case No. 24668-S. I therefore am constrained by previous authorities to rule that the restriction is unenforceable.
There is a more narrow ground on which this decision can rest thus obviating the textbook problem. The restriction as drafted refers only to "the grantee herein." If it had been intended to run with the land rather than being a personal covenant, usual con- veyancing practice would have dictated the use of phraseology to the effect that "The granted premises are conveyed subject to the restriction hereby imposed for the benefit of the grantors' remaining land that until _________19__ the granted premises will not be used for_________." The plain meaning of the words in question imply an undertaking only by the grantee named in the deed. And since the language of a deed is to be construed most strongly against the grantor, Krinsky v. Hoffman, 326 Mass. 683 , 688 (1951), the restriction as drafted lends itself to the interpretation that it applies only to Stateline Motor Inn, Inc.
There is nothing in Cogliano v. Lyman, Mass. (1976) [Note 4] to the contrary.
[Note 1] The certificate of title to be issued to the plaintiff also will contain said paragraph.
[Note 2] By Interlocutory Order entered September 5, 1978, this Court denied the motion since the plaintiff's ownership of the property remained in dispute. At that time, the registered owners named in the outstanding certificate of title were Fred D. Knight and wife, as tenants by the entirety. The plaintiff has subsequently obtained an order in Registration Case No. 15816-S directing that Certificate of Title No. 3882, issued from the Northern District of Bristol County, be cancelled and a new certificate for the land described therein be issued to him. It is the plaintiff's second motion for summary judgment, which was argued on September 25, 1978, that is presently before this Court.
[Note 3] A case argued before the Supreme Judicial Court recently, Whitinsville Plaza v. Charles H. Kotseas et al, W. 1370, apparently concerns this issue.
[Note 4] Mass. Adv. Sh. (1976) 1596.