ABRAHAM I. RUDNICK & another vs. JAMES R. MURPHY & others.

PETITION , filed on May 7, 1912, by the owner and the mortgagee of a five-story stone apartment or tenement house on Hemenway Street in Boston, for a writ of certiorari addressed to the board of appeal of the building department of the city of Boston, created by St. 1907, c. 550, to quash the proceedings and decision of that board under § 8 of that statute granting an application of the trustees of the Fenway Trust, so called, for a permit for the erection of an apartment or tenement house at 60 Fenway on a lot of land adjoining the rear of the petitioners' lot in a manner purporting to be equivalent to that required by § 55 of the statute, which provides that back of such a tenement house there shall be a yard of the depth there designated extending across the entire width of the lot.

The case was heard by Hammond, J., who reserved and reported it for determination by the full court. The facts material to the decision are stated in the opinion.

J. E. Macy, for the petitioners.

J. P. Lyons, for the city of Boston.

G. A. Sweetser, for the respondents Partridge and Russell.

SHELDON, J. Some very interesting and important questions are raised in this case, which we do not find it necessary to consider; for, if all other matters were decided in favor of the petitioners, we are yet of opinion that the writ of certiorari ought not to be issued for their relief.

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The petitioners seek to compel the owners of the adjoining lot to build in a manner exactly opposite to that which they have themselves adopted. They would require these adjoining owners to leave in the rear of their lot a vacant space or yard of the width required by St. 1907, c. 550, § 55, although the petitioners themselves, in violation of the same statute, have left no vacant space or open yard whatever upon the rear of their own land abutting upon the rear of the land of these adjoining owners. The petitioners have no property right in the obedience of their neighbors to the statutory requirements (Hagerty v. McGovern, 187 Mass. 479), although we assume that the value of their property may be so affected as to entitle them to prosecute this petition under the provisions of § 129 of the statute already referred to. But however much the value of their property may be affected by the fact that a strip of only three feet wide of their neighbors' land is to be left open for their advantage, it is plain that the damage to those neighbors from the petitioners' act in leaving no open space at all upon their own abutting land must be proportionally much greater. After causing this loss to their neighbors, the petitioners are not in a position to invoke the exercise of a discretionary remedy to prevent less injurious action of the same kind on the part of their neighbors. It is further to be borne in mind that the loss of value to the petitioners' estate must be largely a loss of the increment of value which they had wrongfully obtained by occupying the whole of their own lot to the detriment of their neighbors' property.

Evidently, if under this state of facts the petitioners' remedy had been in equity, and if they were now seeking by equitable process to compel their neighbors to leave open the full space which it is claimed should be left open upon their neighbors' land, the petitioners would fail, both for the reason that they who seek equity must do equity, and because it could not be said that they came into court with clean hands, or, as an old maxim puts it, "he that hath committed iniquity shall not have equity." Railroad Co. v. Soutter, 13 Wall. 517, 523, 524. Johnson v. Moore, 33 Kans. 90, 99. Goble v. O'Connor, 43 Neb. 49, 58. Their misconduct was in regard to the very matter now in litigation, the leaving of an open and unoccupied space between the buildings upon these two adjacent lots of land; it has affected the relations of the parties and

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of their respective properties to each other, and would result, if the petitioners' claim were maintained, in securing to them an unjust and inequitable advantage at the expense of their neighbors. This comes exactly within the restrictions of the rule stated in Langdon v. Templeton, 66 Vt. 173, 182, and in Hays' estate, 159 Penn. St. 381. The principle is declared in our own decisions. Lawton v. Estes, 167 Mass. 181. Snow v. Blount, 182 Mass. 489. Downey v. Charles S. Gove Co. 201 Mass. 251. Wilson v. Jackson, 204 Mass. 432, 436. And see the cases collected in 11 Am. & Eng. Encyc. of Law, (2d ed.) 162 et seq., and 16 Cyc. 144 et seq. It is true that we have here not a suit in equity, but a suit at law; Brockton v. County Commissioners, 183 Mass. 42; but it is also true that the granting of a writ of certiorari is always a matter of judicial discretion, and never is allowed when it would operate inequitably and unjustly. Rutland v. County Commissioners, 20 Pick. 71,78. Hancock v. Boston, 1 Met. 122, 123. Stone v. Boston, 2 Met. 220, 228. Noyes v. Springfield, 116 Mass. 87. Ward v. Newton, 181 Mass. 432, 433.

It does not matter that the petitioners may have acted in good faith in the erection of their building. That was true of the defendant's violation of another building law in Eastern Expanded Metal Co. v. Webb Granite & Construction Co. 195 Mass. 356. They must obey the law at their peril. Nor is it material that the value of their land might have been in some slight degree affected by the construction of the adjoining building as contemplated, even if they had themselves complied with the requirements of the statute. They would then have had a standing to make their complaint in court.

The pendency of the bill in equity against the petitioners can be of no consequence. If that bill can be maintained, and if the petitioners' contention as to the merits of the case is sound, and we make no intimation as to either question, it is difficult to see why the remedy in equity is not as available to one neighbor as to another. But if there is any other adequate remedy, the writ of certiorari should not be issued.

Petition dismissed.