KAKAS BROS. CO. vs. SADIE KAPLAN & others.

RONAN, J. This a bill filed under G. L. (Ter. Ed.) c. 231A by the owner of a parcel of land on Chauncy Street in Boston against the defendants Kaplan, the owners of an adjoining parcel of land, a mortgagee bank, and various tenants of the Kaplans, seeking a determination whether the plaintiff's land is subject to an easement of light and air for the benefit of the Kaplan lot. The suit was submitted to the Superior Court upon a statement of agreed facts together with certain documents.

In 1849, the Rowe Street Baptist Church Society, a religious corporation, conveyed to Holmes Ammidown and others as trustees of the said society an entire tract of land bounded on the west by Chauncy Street and on the north by Bedford Street in Boston. The trustees in 1853 conveyed to one Perrin the southerly portion of said tract now known as 70-72 Chauncy Street by a deed duly recorded, which contained the following provision, "and saving and reserving to us Trustees as aforesaid for the benefit of said adjoining Church estate the right that no new outbuildings, or other structure shall ever be erected on the back part of the land hereby conveyed within thirty-eight feet of said back passage way which shall be higher than a point two feet six inches below the bottom of the Cap of the Vestry windows, in said Church." The society's church was then located upon the remaining corner lot of the society which adjoined the parcel conveyed to Perrin. The plaintiff in 1946 became the owner through mesne conveyances of the premises conveyed to Perrin subject to any reservations or restrictions

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contained in the deed to Perrin as they were purported to be amended and as also described in a document dated June 26, 1880, and duly recorded "so far as same are now in force."

The trustees subsequent to the conveyance to Perrin reconveyed the remaining land to the society which in 1867 conveyed that land to one Wellington. This parcel is now known as 60-68 Chauncy Street and is owned by the defendants Kaplan. Wellington removed the church building in 1880. He recorded an instrument dated June 26, 1880, above mentioned, to perpetuate the evidence of two persons that a certain sheet of copper in the face of the wall of the new six story building which was erected upon the site of the church in 1880 designated the elevation of the point two feet six inches below the bottom of the cap of the vestry windows in the old church building.

A five story brick building was erected in 1890 upon the front part of the land now owned by the plaintiff. The rear building on this lot is one story in height. It stands in the area covered by the reservation in the deed to Perrin. There is no contention made that it does not comply with said reservation or that it may be affected by the instrument of June 26, 1880. The plaintiff desires to build above this one story building. The six story building of the defendants Kaplan is occupied by various lessees engaged in different types of manufacturing. Some of the windows in the southerly wall of their building face the area above the one story building of the plaintiff.

Certain fire escapes project from the side of the Kaplan building above the roof of the one story building. They have been so maintained openly, continuously, and adversely for more than twenty-six years.

The plaintiff appealed from a final decree adjudging that the reservation in the deed to Perrin, and as described in the instrument of June 26, 1880, was in full force and effect and exists for the benefit of the Kaplan land, and that an easement by prescription to maintain the fire escapes exists for the benefit of the Kaplan land.

The plaintiff does not question the correctness of the

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decree so far as it concerns the fire escapes. Neither does it raise any question that an easement of light and air was created by the reservation in the deed of the trustees to Perrin. It argues that the location of the escapes would not prevent it from erecting additional stories to its rear building. It contends that the reservation in the conveyance to Perrin was a personal restriction existing only during the lives of the respective trustee grantors, that in any event the reservation was for the benefit of the church structure, and that consequently the easement terminated in 1880 when the building was removed.

As the law stood at the time of this conveyance, it was generally held that a right in land created by a reservation, being a new right which then came into existence and which the grantor did not previously posses, was in effect a regrant from the grantee to the grantor. It was necessary to include words of inheritance if the right reserved was to extend beyond the life of the grantor. Ashcroft v. Eastern Railroad, 126 Mass. 196. Bean v. French, 140 Mass. 229. McDermott v. Dodd, 326 Mass. 54, 56. See now G. L. (Ter. Ed.) c. 183, Section 13. The grantors in the Perrin conveyance were acting only in their capacity of trustees for the church corporation, and the conveyance was made in carrying out the purposes of the trust and incidentally to secure an advantage for the benefit of the corporation by securing for the church lot an easement of light and air over the granted premises. The trust was not coterminous with the lives of the grantors. Indeed, it appears that one of the trustees had died before the remaining property was reconveyed to the church corporation in 1867. It was well established at the time of the conveyance that words of inheritance were not required to create an easement in fee by a reservation in a deed given by trustees where the performance of their duties might call for a legal estate beyond their respective lives. Stearns v. Palmer, 10 Met. 32, 35-36. Gould v. Lamb, 11 Met. 84, 86-87. Cleveland v. Hallett, 6 Cush. 403, 407. King v. Parker, 9 Cush. 71, 81. Attorney General v. Federal Street Meeting-house, 3 Gray 1, 48.

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The real question presented is the duration of the easement. The deed to Perrin must be construed to give effect to the intention of the parties as shown by the words employed, construed with reference to the attending circumstances known to them at the time the deed was executed. Crocker v. Cotting, 181 Mass. 146, 151. Bessey v. Ollman, 242 Mass. 89.

Where the minds of the parties were entirely centered upon the set-back, the materials, the height, the number and location of windows, a flat or curved front, the character and extent of projections such as piazzas and bay windows and other details, it has been held that restrictions covering such particulars apply to the first and not to successive structures. Hubbell v. Warren, 8 Allen 173. Boston Baptist Social Union v. Boston University, 183 Mass. 202. American Unitarian Association v. Minot, 185 Mass. 589. Welch v. Austin, 187 Mass. 256.

An easement may attach to a building for the benefit of adjoining land or an easement in land may be created for the benefit of a building, and in either case the easement will terminate upon the destruction of the building enjoying the easement or of the one which was subject to the easement. Cotting v. Boston, 201 Mass. 97, 101-102. Union National Bank v. Nesmith, 238 Mass. 247. Ansin v. Taylor, 262 Mass. 159, 164. Mt. Holyoke Realty Corp. v. Holyoke Realty Corp. 284 Mass. 100. Hurley v. Guzzi, 328 Mass. 293. Sorel v. Boisjolie, 330 Mass. 513. Lippitt v. Weenat Shassit Association, 52 R. I. 100. Hopkins The Florist, Inc. v. Fleming, 112 Vt. 389.

We do not think that the easement now in question was created for the benefit of the church structure. The corporation had transferred the realty to trustees. The surviving trustees had succeeded in finding a purchaser for what was really the rear portion of the front corner lot upon which the church was located, and when a purchaser was found for the front lot some fourteen years after the conveyance to Perrin, the surviving trustees at the request of the church corporation reconveyed to it the front lot. The inference is

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plain that, at the time of the conveyance to Perrin, any further occupancy of the corner lot for the purposes of the church was of uncertain tenure. In this situation, it is unlikely that the trustees would be much concerned in acquiring an easement of light and air only for the benefit of the church structure and until the church lot could be sold rather than that they intended to impose an easement upon the lot sold to Perrin so as to enhance the value of the church land. It would have been easy to have fixed the duration of the easement during the period that the corner lot was occupied by the church. Instead, they stated that the easement was to last forever for the benefit of the church estate. They made a distinction between the church estate or parcel and the church building which they referred to in the reservation for the purpose of denoting the elevation above which there was to be no interference with light or air upon a certain rear area on the lot now owned by the plaintiff for the benefit of the "adjoining Church estate." The reservation was in general terms without restrictions in order to carry out the purpose of the trustees. It was not limited to the use then being made of the dominant estate but extended to all uses to which the dominant estate might thereafter be devoted. Codman v. Bradley, 201 Mass. 361. Parsons v. New York, New Haven & Hartford Railroad, 216 Mass. 269. Mahon v. Tully, 245 Mass. 571. The further restriction in the deed to Perrin reserving "the right and privilege of keeping and maintaining said vault and privy for the benefit of out said adjoining land as the same now exists forever" does not aid the plaintiff. The judge was right in deciding that a permanent easement of light and air over a certain portion of the plaintiff's land is an appurtenance to the Kaplan land. Dyer v. Sanford, 9 Met. 395. Ladd v. Boston, 151 Mass. 585. Brown v. O'Brien, 168 Mass. 484. Kesseler v. Bowditch, 223 Mass. 265. Tidd v. Fifty Associates, 238 Mass. 421. Hennen v. Deveny, 71 W. Va. 629.

Decree affirmed.