to it as an appurtenance." There is no lan- person who creates the restriction stands as guage in the deed expressly stating that this a rule, absolutely indifferent to its observcondition was inserted for the benefit of the ance, except as he may be interested as ownremaining land. It would have been easy to er of some adjoining land. But it is othersay that it was so inserted if that had been wise in the case of a condition. The owner the intention of the grantor. This omis- of the right of reverter has an interest in the sion is rendered more significant when it is land conditioned entirely independent of the observed that the right of way which is re- benefit of other land owned by him or any served in the deed is "to be used in common other person. It is a right personal to him by the owners of the estate on either side and his heirs or devisees. Indeed, in ancient thereof," thereby showing that when the times conditions were, as a rule, of such a grantor intended to make a reservation for nature that their observance or violation was the benefit of his remaining lot he appreciat- of no benefit or damage whatever to any othed the importance of making that intention er land than that upon which the condition clear, and knew how to do it. We must was imposed, and the only persons interested therefore look into the situation and attend- were the owners of the defeasible estate on ant circumstances. It is not a case where the one hand and the owner of the right of the owner of land adopts a scheme or plan reverter on the other. See note 84 Butl. Co. for its improvement, dividing it into house Litt. 201(a). In this very case the owner lots, and inserting in the various deeds uni- of the right of reverter could, in any event, form restrictions as to the purposes for enter for breach of condition, and hold the which the land may be used, such restrictions land free from condition as of his original upon each being intended for the benefit of estate as against the whole world, unless, inthe other lots, and is therefore not included deed, an exception be made in favor of the in the class of cases of which Whitney v. Un- plaintiff. The only circumstances here reion R. Co. 11 Gray, 359, 71 Am. Dec. 715, lied upon as showing that the grantor inand Hopkins v. Smith, 162 Mass. 444, 38 N. tended to create this conditional estate for E. 1122, are examples. And the case is still the benefit of his remaining land is that he further distinguishable from many of these was occupying it as a homestead at the time cases by the fact that in them there is ex- of the grant, and that it would be benefited press language in the deeds showing an in- by the observance of the condition. But tention to create the easement for the benefit these facts are just as consistent with the of other land. And the case is unlike Peck idea that the grantor intended that this rev. Conway, 119 Mass. 546. In that case maining land should have the benefit of the there was a reservation, and not a condition, condition only so long as he pleased, whether and the grantor could have no interest in the occupied by him or not, and that at all times reservation other than as connected with his the right of reverter should remain unimremaining land. In this present case the paired in him or his heirs. Upon full congrantor retained an interest in the land sold sideration of this whole deed in the light of to the defendants, and after the sale of the the attendant circumstances, we think that remaining land the right of reverter in the the plaintiff has failed to show that this condefendant's land still remained in his heirs dition was created for the benefit of the or devisees. It appears that the grantor plaintiff's land. We are aware that in other was an invalid, and that he usually sat at a states there have been decisions that may window, from which he had a good view of seem to be, and perhaps are, in conflict with the street; and that while negotiations were this decision, although we are inclined to pending between him and the defendants, think that upon full examination the differand prior to the delivery of the deed, he told ence may be more seeming than real, and them that if he sold the property to them that the difference of result arises rather he did not wish his view of the street from from a difference in the facts than from any that window cut off, and he should have some difference as to well-recognized legal or equiclause inserted in the deed to prevent this; table principles. See Clark v. Martin, 49 and when the deed was delivered he told the Pa. 289; Watrous v. Allen, 57 Mich. 362, 58 defendants he had put in a clause so that his Am. Rep. 363, 24 N. W. 104; Post v. Weil, view of the street from the window should 115 N. Y. 361, 5 L. R. A. 422, 22 N. E. 145. not be cut off. He was sick, and desired to But, however that may be, we think a decihave the view from the window remain un- sion for the plaintiff on the facts of this case impaired so long as he should live where he would be extending the doctrine of Whitney then lived. He was looking out for his per- v. Union R. Co. 11 Gray, 359, 71 Am. Dec. 715, sonal comfort while in occupancy of the and of similar cases in this commonwealth, house, but that purpose is perfectly consist- beyond its legitimate scope, and much furent with the view that he was not making ther than it ought to go. The case is rather any provision for the future occupant. It to be classed with such cases as Badger v. may be admitted that it would be for the Boardman, 16 Gray, 559; Jewell v. Lee, 14 benefit of the plaintiff's land to have the condition observed, but the real question is, Was it the intention of the grantor that the right | to have it thus observed should be an appurtenance to that land? On this question we may properly take into consideration the manner in which he protected himself. In the ease of a restriction or reservation the Allen, 145, 92 Am. Dec. 744; Sharp v. Ropes, 110 Mass. 381; Dana v. Wentworth, 111 Mass. 291. It seems to us that in all these cases it is better to get at the intention of the grantor from the language of the deed interpreted in the light of the attending circumstances than to conjecture the intent from the circumstances, and then to make the lan guage of the deed bend to that. The declara- | Ayling v. Kramer, 133 Mass. 12; Skinner v. tions of Eaton after the delivery of the deed were properly excluded. Bill dismissed. Morton, J., dissenting: The Shepard, 130 Mass. 180; Jeffries v. Jeffries, 117 Mass. 184; Episcopal City Mission v. Appleton, 117 Mass. 326; Sohier v. Trinity Church, 109 Mass. 1, 19; Chapin v. Harris, 8 Allen, 594; Parker v. Nightingale, 6 Allen, There is no doubt that there are words in 341, 83 Am. Dec. 632; Post v. Weil, 115 N. the clause in question express and apt to cre- Y. 361, 5 L. R. A. 422, 22 N. E. 145; Avery ate a condition at common law, and that es- v. New York C. & H. R. R. Co. 106 N. Y. 142. tates upon condition are a well-known form 12 N. E. 619; Clark v. Martin, 49 Pa. 289; of estate. But that does not assist us much Watrous v. Allen, 57 Mich. 362, 58 Am. Rep. in the construction of the clause. There 363, 24 N. W. 104; Lake Erie & W. R. Co. v. never has been any hard and fast rule that Priest, 131 Ind. 413, 31 N. E. 77; Wier v. Simwords express and apt to create a condition mons, 55 Wis. 637, 13 N. W. 873; Fuller v. at common law in a deed should always be Arms, 45 Vt. 400; Mills v. Davison, 54 N. J. so construed. From the time of Lord Coke, Eq. 659, 35 L. R. A. 113, 35 Atl. 1072; if not before, such words have received a Neely v. Hoskins, 84 Me. 386, 24 Atl. 992. different construction when required in or- The decisions in which this has been done der to promote the obvious intent and pur- have not been confined to any particular class pose of the parties. Co. Litt. 203; Crom- of cases, such as, for instance, building wel's Case, 2 Coke, 70; Shep. Touch. 122; schemes and plans of general improvement; 2 Bl. Com. Sharswood's ed. § 151, note 1. but the rule has been applied in other cases, The converse has been equally true. Words and has been recognized in cases where it was not apt to create a condition in a deed at not applied. It is an application to condicommon law have been construed as creating tions in deeds of the rule adopted in regard one when such appeared to be the intention to other written instruments, namely, to so of the parties, and the language admitted of construe them as best to promote to obvious such a construction. Shep. Touch. 123. intent and purpose of the parties. MerriNeither does the law look with especial favor field v. Cobleigh, 4 Cush. 178. It is the same upon estates on condition. "Conditions sub-principle which has led to the construction of sequent," it is said by Chancellor Kent, "are a deed intended to take effect in futuro, as a not favored in law." 4 Kent, Com. 9th ed. covenant to stand seised (Trafton v. Hawes, $ 129. They are strictly construed against 102 Mass. 541, 3 Am. Rep. 494), and is, I parties seeking to enforce them, and equity think, a sound and sensible rule, and one calaffords relief in various cases from forfeiture culated to do justice between parties. for a breach of them. Bradstreet v. Clark, question, then, is, it seems to me, How shall 21 Pick. 389; Merrifield v. Cobleigh, 4 Cush. this clause be construed in the light of ad178; Lundin v. Schoeffel, 167 Mass. 465, 470, judged cases in this and other courts, and in 45 N. E. 933, and cases cited; Lilley v. Fifty the light of the attendant circumstances at Associates, 101 Mass. 432. These doctrines the time of the execution of the deed? The have been long and well settled. And they latest case in this court in which the conhave led this court and other courts fre- struction of a condition in a deed has been quently to construe so-called "conditions" considered is Cassidy v. Mason, 171 Mass. not according to the strict meaning of the 507, 50 N. E. 1027. There were three deeds, words used, but in such a manner as to carry each having a clause that contained language out the intentions of the parties as mani- apt to create a condition at common law. In fested by a fair interpretation of the lan- the first deed the language was, "Provided, guage when viewed in the light of the attend- that no building shall be erected on said lots ant circumstances. If it appeared that the of land, or either of them, within 10 feet of parties intended to create an estate upon the streets as exhibited on said plan." In condition, effect has been given to the inten- the second it was, "On condition that no tion. If it appeared that some other right building shall ever be erected on said lot withor obligation was intended to be created, the in 10 feet of said plan [sic] as laid down on language has been construed accordingly. said plan." And in the third it was, "The The matter has been regarded as one of sub-premises are sold subject to the condition stance, rather than of form; and the cardinal that no building shall ever be erected on the rule of construction has been, not to ascer- granted premises within less than 10 feet tain the effect in regard to estates upon con- from said street." It will be seen that the dition, but to ascertain and enforce the in- object of each provision was the same as tention of the parties so far as it could be here, namely, to prevent the erection of builddone consistently with established rules. In ings within a certain distance of the street, numerous cases, for one reason or another, and that words the most apt to create a conwords apt to create a condition at common dition at common law were used, namely, law in a deed have been interpreted as mean- "provided," "on condition," and "subject to ing something else,-limitations, covenants, the condition." There is nothing in the case restrictions, easements, servitudes, and as reported or in the papers on file that shows trusts, because it was thought that such a|that the provisions were inserted as part of construction would best conform to and car- a general scheme or plan of improvement. ry out the intention of the parties. Cassidy and the opinion does not purport to go on v. Mason, 171 Mass. 507, 50 N. E. 1027; Hop-that ground. All of the justices sitting conkins v. Smith, 162 Mass. 444, 38 N. E. 1122; curred, so far as appears, in the opinion, which was written by the late chief justice. | upon this express condition, that the afore- used or occupied as a tavern or public place It seems to me that the case of Cassidy v. Mason, 171 Mass. 507, 50 N. E. 1027, and the other cases to which I have referred, are decisive of this. In the present case, at the time of the conveyance to the defendants, their grantor owned and occupied as a homestead the premises now belonging to the plaintiff, and adjoining on the north those of the defendants. The premises were both situated on the easterly side of Central street, in Leominster. On the premises conveyed to the defendants the only building, so far as appears, was a store two stories high and 22 feet from the street line. On those retained by the defendants' grantor was the dwelling house occupied by him. This was see how he [the grantor] would have any interest in restricting the use of the land sold except as owner of the house lot which he retained. The nature of the restriction also implies that it was intended for the benefit of this lot. A prohibition against considerably nearer the street than the store, | That is shown by what was conveyed, and and was, as appears from the scale to which by the reservations of the rights of way and the plan is drawn, about 35 feet south of the drainage. It is fair to assume that the scrivstore. It appears-though I doubt whether ener who drew the deed knew that rights it is of importance that the defendant's could be created for the benefit of an adjoingrantor was an invalid, and from the window ing estate as well in the form of a condition at which he usually sat there was a good as in the form of a reservation or restriction. view of Central street, which was the main To assume otherwise would be to suppose street of Leominster. The defendants have that he was ignorant of numerous cases in built out to the street line, although they which this court has so held, and of long-eswere notified by the plaintiffs not to do so, tablished rules. The change from the lanand though their deed prohibits them from guage of reservation to that of condition was doing so. I lay on one side the declarations not for the purpose of altering the nature of of defendants' grantor made before and after the right, but to express in the strongest and at the time of the execution and delivery terms that the estate which he was conveyof the deed. They do not serve to identifying should remain subject forever to an easethe subject-matter, or to explain the situa-ment of light, air, and prospect in favor of the tion of the parties and the attendant circum- other estate. He does this by making the stances when the deed was executed, and de- conveyance upon the express condition that livered. They are declarations by the grant- the grantees, their heirs and assigns, should or respecting his purpose in having the never build nearer the street line than the clause inserted, and as such, it seems to me, store then was. The reasoning of the court are clearly inadmissible. Harlow v. Thom-in Peck v. Conway, 119 Mass. 546, where the as, 15 Pick. 66; Noble v. Bosworth, 19 Pick. grantor occupied as a homestead a lot adjoin314; Davis v. Ball, 6 Cush. 505, 53 Am. Dec. ing that which he conveyed, seems to me ap53; Miller v. Washburn, 117 Mass. 371; Si-plicable. "It is difficult," says the court, "to manovich v. Wood, 145 Mass. 180, 13 N. E. 391; Lilienthal v. Suffolk Brewing Co. 154 Mass. 185, 12 L. R. A. 821, 28 N. E. 151; Adams v. Morgan, 150 Mass. 143, 22 N. E. 708; Sirk v. Ela, 163 Mass. 394, 40 N. E. 183. It is plain that the object of the socalled "condition" was to prevent the defend-building on the land sold would be obviously ants from doing what they have done, and to prevent them from doing it at any time, either during the grantor's life or after wards. The language is, "that said Wilder and Hills, their heirs and assigns, shall never erect any building nearer the street line," etc. The prohibition expressly extends, not only to Wilder and Hills, but to their heirs and assigns, to all who shall take through them. When Wilder and Hills took their deed, they thereby agreed for themselves and their heirs and assigns that they would never build any nearer the street line than the store then was. The right and obligation thus created were not limited to the lives of the grantor and grantees, and were not temporary in character, but were to continue indefinitely, and were permanent. Which then, is the more reasonable, that they were created for the benefit of the adjoining estate, or for the personal benefit of the grantor? It is possible, perhaps, to think of the grantor as speculating upon possibilities of reverter and rights of re-entry, and as pausing to consider the differences between reservations and conditions, but it is not likely that he did so. It must have been plain to him, as to everyone else, that no one could have as much interest in having the space between the store and the street kept open as the owner and occupant of the adjoining premises, and that his interest would consist in the fact that he was such owner and occu-744; Sharp v. Ropes, 110 Mass. 381; and pant. This would apply to the grantor as well as to his successors in title. The grantor was not thinking of a personal right or privilege. He was dealing with property and rights of property, not with personal rights. useful and beneficial to this lot, giving it the benefit of better light and air and prospect. (this is its apparent purpose); while it would be of no appreciable advantage for any other purpose. The fair inference is that the parties intended to create this easement or servitude for the benefit of the adjoining estate." It is true that in that case the right was created by reservation. But no stress was laid on that fact, and personal rights may be created as well by reservation or restrictions as by conditions. The question was whether the right was a personal right or was appurtenant to the adjoining land, and the court was led, from the situation and manner of occupation of the two estates, to hold that the right was not a personal right, but constituted an easement in favor of the adjoining estate. It is to be noted also that there are no words of re-entry, reverter, or forfeiture in the clause which we are considering. Such words are not necessary to constitute an estate upon condition. But, if the grantor had intended to create a personal right in himself and his heirs and devisees in distinction from the rights of way and drainage created by reservation, it is not improbable, to say the least, that he would have added words so characteristic of estates upon condition. The cases of Badger v. Boardman, 16 Gray, 559; Jewell v. Lee, 14 Allen, 145, 92 Am. Dec. Dana v. Wentworth, 111 Mass. 291,-are clearly distinguishable from this. This is a case as in Peck v. Conway, 119 Mass. 546, and Clark v. Martin, 49 Pa. 289, of a grantor 'owning and occupying a homestead, and own ing and conveying an adjoining lot subject | to a building limitation. Naturally the limitation would be intended for the benefit of the homestead. In Peck v. Conway, 119 Mass. 546, the adjoining lot was vacant. In Clark v. Martin, 49 Pa. 289, there was a house upon it. In the present case there was a store upon it, which stood further back from the street than the homestead occupied by the grantor, thereby giving the homestead increased light, air, and prospect, which it was the manifest object of the condition to retain. In neither Badger v. Boardman, Jewell v. Lee, Sharp v. Ropes, nor Dana v. Wentworth, were the circumstances surrounding the parties when their deeds were made at all similar to those surrounding the parties when the deed in this case was made. I think, therefore, that whether the provision is called a "condition" or a "restriction," the plaintiff, as owner of the adjoining premises, is entitled to the benefit of it, and that a deeree should be entered in his favor. reasonably safe and convenient for travelers, with their horses, teams, and carriages at all seasons of the year." This statute was enacted in 1786, and has been in force ever since. Stat. 1786, chap. 81, § 1; Rev. Stat. chap. 25, § 1; Gen. Stat. chap. 44, § 1; Stat. 1877, chap. 234. The question, then, is whether a bicycle is a carriage, within the meaning of this term in the statute. We have no doubt that for many purposes a bicycle may be considered a vehicle or a carriage. It may be lawfully used on the highway, and is subject to the law of the road. State v. Collins, 16 R. I. 371, 3 L. R. A. 394, 17 Atl. 131; Myers v. Hinds, 110 Mich. 300, 33 L. R. A. 356, 68 N. W. 156; Taylor v. Union Traction Co. 184 Pa. 465, 40 Atl. 159; Thompson v. Dodge, 58 Minn. 555, 28 L. R. A. 608, 60 N. W. 545. So, under a law prohibiting a person from riding or driving any sort of carriage furiously. Taylor v. Goodwin, L. R. 4 Q. B. Div. 228. So, under laws or ordinances prohibiting driving on the sidewalk. Reg. v. Justin, 24 Ont. Rep. 327; Knowlton and Lathrop, JJ., concur in Mercer v. Corbin, 117 Ind. 450, 3 L. R. A. this opinion. RICHARDSON v. Inhabitants of DANVERS. (........ Mass.........) A bicycle is not within the meaning of a statute passed in 1786, requiring highways to be kept reasonably safe for carriages. (June 21, 1900.) EXCEPTIONS by defendant to rulings of The facts are stated in the opinion. Lathrop, J., delivered the opinion of the court: The plaintiff, while riding a bicycle on a highway which the defendant was bound to keep in repair, encountered a depression in the way, and fell from her wheel and was injured. The jury returned a verdict in her favor, and the case comes before us on several exceptions to the exclusion of evidence, and to the refusal of the court to rule that a bicycle is not a carriage, within the meaning of Pub. Stat. chap. 52, § 1. The statute in question provides that highways and other ways named shall be kept in repair, at the expense of the town, city, or place where they are situated, “so that the same may be NOTE. For law as to bicycles, see Taylor v. Union Traction Co. (Pa.) 47 L. R. A. 289, and note. As to bicycle paths, see State v. Bradford (Minn.) 47 L. R. A. 144. 221, 20 N. E. 132; Com. v. Forrest, 170 Pa. fore bicycles were invented, but although, of within the principle upon which they are founded. To do this would be judicial legislation." A bicycle is more properly a machine than a carriage, and so it is defined in Murray's Dictionary. It is also so considered in Stat. 1894, chap. 479, which is an act to regulate the use of bicycles and similar vehicles, and in the amendatory act of 1898 (Stat. 1898, chap. 121). |