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of the street should not be built upon, but kept open. It is to be presumed that they would not have bought and paid their money except upon this as
It is to be presumed that, relying upon this assurance, they paid a larger price for the lots than otherwise they would have paid. Selling and couveying the lots under such circunstances and with such assurances, they therefore bound Davis, in equity and good conscience, to use and dispose of all the remaining lots so that the assurances upon which Maxwell and others had bought their lots would be kept or fulfilled. This equity attached to the remaining lots, 80 that any one subsequently purchasing from Davis any one or inore of the remaining lots, with notice of the equity as between Davis and Maxwell and others, the prior purchasers, would not stand in a different situation from Davis, but would be bound by that equity": Tullmadge v. East River Bank, 26 N. Y. 105, 107. The meaning of this, of course, is, that such an equity or negative easement in land for the benefit of adjacent land may be created by a parol agreement or understanding between the original owner and purchasers of different parts of the land, and that notice of this agreement, actual or constructive, will bind a subsequent purchaser of one of the tracts in like manner as it would have bound the original owner, from whom he purchased. This case stretches the doctrine of preceding cases further than any case in the books known to the writer.
It has been held to be sufficient that the defendant buys with notice that it is claimed that there are restrictions which will prevent the dofendant from acquiring a right, as purchaser of the lots, to build outside of a prescribed building line. It has been also said that the uniformity of the position of all the houses which have previously been built, namely, the fact that they all front upon one line, is probably sufficient alone to put a subsequent purchaser on inquiry as to the existence of an agreement for a building line: Tallmadge v. East River Bank, 26 N. Y. 105, 111. It is the settled law that in order to sustain a proceeding in equity to restrain the violation of such a restriction it must be shown that the defendant took the land with notice, either express or constructive, that the restriction existed, and that it was intended for the benefit of the plaintiff's estate. In declaring this principle, it has been added: “It is vital to the rights of the parties, because, as the case stands, the plaintiff is not entitled to avail himself of the equitable principle that the defendant has taken his estate with notice of a stipulation for the benefit of the estate now owned by the plain. tiff which in equity, by accepting the grant, the defendant would be bound to observe": Badger v. Boardman, 16 Gray, 559, 561; citing Whitney v. Union R’y Co., 11 Gray, 359; 71 Am. Dec. 715. In conformity with this view, the general rule has been stated to be, that if parties purchase land with notice of a covenant concerning it, but which does not run with the land, equity will not permit them to do anything contrary to the true meaning of that covenant: T'ulk v. Moxhny, 2 Phill. Ch. 774; Patching v. Dubbins, Kay, l. But on this subject it has been ruled that the owner of the land charged with such servitude is bound by the covenants in the deed of his remote grantor by which it was created, although it is not mentioned at all in the deed under which he immediately takes, that is, in the deed to him, and although he has no knowledge of it in fact; for as he derives his title under a deed which contains the covenant, he is bound to take notice of its provisions; Peck v. Conway, 119 Mass. 546; citing to this point, Whitney v. Union R'y Co., Il Gray, 359; 71 Am. Dec. 715. Upon the question, What will amount to evi. dence of notice in a particular case? it has been ruled that where land had been laid out for building a row of houses on a general plan, according to which po
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building was to be erecies within six feet from the projected road in front of the row, a purchaser of ove of the plats, being aware of the general scheme, and buying subject to the terms of the printed form of contract relating to the whole estate, which restrained him from building within six feet from the road, and knowing that another plat bail been previously sold and built upon according to the general scheme, must have been considered to have known that the previous purchaser had bought subject to a similar restriction: Child v. Douglas, Kay, 565. It is believed that in respect of this question of notice there is a distinction between notice of the fact of the covenant and notice of the effect of it. The distinction is believed to be that stated above, that the owner of land will be conclusively presumed to have notice of any covenant in a deed which constitutes his chain of title, and that in so far as that covenant necessarily burdens his land he takes subject to it, whether he has actual notice of it or not. This seems to be an unavoidable conclu. sion froin the truism that a grantee takes only what his grantor conveys. On the other hand, although there may be a restrictive covenant in his chain of title, it does not follow that he will have notice from the words of the covenant themselves that the effect of the covenant is to impose a servitude opon his land for the benefit of adjoining or adjacent land belonging to some one else; the language of the deed may be equally consistent with a purpose on the part of the covenantee to impose the restriction for his own personal benefit to effect some present or collateral purpose of his own. this distinction that nearly all the cases separate.
It must be constantly kept in mind that in every case of this kind the par. amount and controlling question to be determined by the chancellor upon an interpretation of the deed containing the covenant, in connection with the surrounding circumstances and other applicatory evidence, is, whether the covenant was really intended for the benefit of the land retained, or whether it was intended to subserve some purpose personal to the covenantes, 80 that after parting with the land retained he might be still at liberty to release the covenant at his pleasure. As a general rule, such a covenant will be regarded as having been intended for the benefit of other land retained by the covenantee, since, as a general rule, it could have no other purpose. This will be obvious if we consider the case of an owner of two adjoining city lots selling one of them and imposing upon it a restriction as to the manner in which it shall be used; prohibiting its use for a livery-stable, a dram-sliop, or the like; or prescribing a building line within a given distance from the line of the street on which it fronts. In such a case it is difficult to under. stand that the covenant could have had any other purpose than to benefit the land retained by prohibiting uses of the land sold, which, though not unlaw. ful, would work more or less annoyance to an occupier of the land retained, and further diminish its value. If after imposing such a restriction upon the use of the land sold for the benefit of the land retained the owner subsequently sells the land retained to another grantee, it is undeniably logical and obviously just that the negative easement or equity which he has created in the land first sold for the benefit of the land afterwards sold passes to the second grautee and to his successors indefinitely. At least, equity will so re. gard it; for this is the sense and substance of the engagement. In giving the opinion of the supreme court of Pennsylvania so bolding, Lowrie, C. J., said: “In a proceeding in the common-law form, it would be necessary to inquire into the form in which the right is reserved, in order to decide whether it should be sued for as a condition or a covenant, or as a simple con.ract. But in the equity form of proceeding we inquire only into its subur stantial elements, — What does it assure, and to whom? Here the duty of the defendant is so plain that one may read it running; it is clearly inscribed on every link of the chain of his title to the lot. He took his title expressly on the terms already briefly mentioned. He was not to erect on the back part of his lot any building higher than ten feet, afterwards changed to eleven. To whom, then, does he owe the duty? No one doubts that it is to the grantor, who reserved or imposed the duty, and to his heirs and assigns. But did the grantor reserve this duty to himself, his heirs and assigns, as a mere personal duty, and thus retain in himself or them the vain right of saying: "That lot is not mine, but the owner is subject to my pleasure in the mode of building on it'? Common sense forbids this, and the law would not allow itself to be troubled with such vain engagements. . . . . Common sense cannot doubt its purpose, and thus it becomes plain that the duty created by the condition and restriction is a duty to the owner of the adjoining lot, whoever he might be. Very plainly, also, it is a duty that admits the right of the owner of the adjoining lot to have the privilege or appurtenance of light and air over the defendant's lot, and that admits this to be so far subject or servient to that, that the buildiogs on this must, for the benefit of that, be so limited in height, according to the condition of the deeds. So such stipulations are always regarded when the form of remedy is selected and allowed, which can admit of treating the case according to the very substance of the contract": Clark v. Martin, 49 Pa. St. 289, 297.
But in many cases the courts have found that such covenants were not in. tended by the covenantee for the benefit of any land retained by him. In one case, Sir C. J. Selwyn, L. J., answering an argument that such was nocessarily the effect of such a covenant, said: “It is obvious that such a defini. tion does not meet all cases, for cases may be put, in which a vendor might lawfully and reasonably insist upon such covenants, even when the covenants comprised the whole of the property to which he was entitled at the date of the covenant, – as in the case of the purchase and sale of a strip of land adjoin. ing a large park by a person who had at the time no interest in the park, but who hoped to inherit or purchase it. Assuming the vendor of the strip of land to purchase or inherit the park, and to sue the purchaser for breach of the covenant, the purchaser of the strip of land would, in a court of equity, be unable to justify a violation of the covenant by reason of the injury sustained by the vendor leaving arisen only in consequence of his subsequent acquisition of the park ": Keates v. Lyon, L R. 4 Ch. 218, 227. The doctrine, then, is, that an owner or lessee of land cannot have relief in equity in the form of an enforcement of such a covenant, or have an injunction against its violation, unless the court can infer from the language of the deed in which the covenant is contained, when construed in reference to the surrounding circuinstances, an intention, on the part of the parties to the deed, to insert the covenant therein for the benefit of the particular property acquired by the plain. tiff. Affirming this principle, it has been said: “Generally, when such a right or privilege is reserved, the purpose intended to be accomplished by it is stated in the conveyance, or can be gathered from a plan referred to therein, or from the situation of the property with reference to other land of the grautor. All parties then take with notice of the right reserved and the burden or easement imposed ": Badger v. Boardman, 16 Gray, 559, 560; opin. ion by Bigelow, C. J. In another case the doctrine was thus stated by the same learned judge: “It is doubtless true that such may bo the effect of a condition in a class of cases where it is apparent that the condition was annexed to a grant for the purpose of improving or rendering more beneficial and advantageous the occupation of the estate granted, when it should become divided into separate parcels; and be owned by different indiviiluals, or when the inanifest object of a restriction on the use of an estate was to benefit an. other tract adjoining to or in the vicinity of the land on which the restriction is imposed. But in the absence of any fact or circumstance to show such furpose or object, a condition annexed to a grant can have no effect or opera. tiou either at law or in equity beyond that which attaches to it by the rules of the common law. The benefit of the condition would in such cases innre only to the grantor and his heirs or devisees, and the burden of it woull rest on the estate to which it was annexed, and on those who held it or any part of it subject to the condition. Indeed, no restriction on the use of land, and no condition annexed to its possession and enjoyment, can be for the benefit of the grantee or those holding his estate in the granted premises, unless it be as a consideration of some restriction on other land, which may operate as an advantage or convenience in the use and occupation of the granted premises. Inasmuch as a grantee can restrict the use of land of which he is the owner according to his own will and pleasure, it is clear that he can derive no bene. fit from a restriction or condition, as such, imposed on its use or enjoyment by any prior grantor": Jewell v. Lee, 14 Allen, 145, 149; 92 Am. Dec. 744.
Where the covenant is by the vendor himself, the rule is, that the restriction is taken most strongly against him, inodified by the necessity of giving effect to every portion of the instrument, so far as it can reasonably be done. A good illustration of this is found in a case where the vendor of a number of building lots in a terrace inserted in each deed a covenant, on his part unexplained by any recital in the deed, that no building should be erected on any part of the land of the vendor lying on the east side of the terrace, and opposite to the plat of land thereby conveyed. It was held by Sir W. Page-Wood, V. C. (afterwards Lord Hatherley), that the words above Italicized were not merely descriptive of the position of the land, but that they restricted the gen. eral meaning of the former words; and that the covenant applied only to that part of the land which lay immediately opposite the lot of the covenantee in the particular deed. In the course of his opinion, he said: “There is no recital in this deed of an intention of any kind, and therefore the question is nar. rowed to the very words of the covenant itself. I had at first an inclina. tion of opinion that if the words were doubtful, and it could be construed in favor of the defendants, the general rule would be this: that it being equivalent to a grant on the part of the vendor, the construction must be taken most strongly against the grantor. But, on the other hand, there is another rule of construction well established, namely, that it is right to give effect to every word, if it can reasonably and properly be done. I do not feel, therefore, at liberty to say that it is doubtful if in putting one construction upon this covenant I give complete effect to all the words, whereas I should be leaving a portion of the words without effect in giving to the covenant a contrary construction. If I take the construction of the plaintiff, I strike the words and opposite to the plat of land' out of the covenant; that is, the covenant would be just as intelligible in the sense of the plaintiff without those words as with them, or indeed much clearer. It would be effective if it were only 'any part of the land lying on the east side of the said terrace.' Those words alone would have given the plaintiff the right for which he now contends, Am I at liberty to say that the other words are saperfluous, and wholly inef. fectivo, and are merely thrown in as additional description? I do not think that would be a sound construction. The phraseology would be ill-selected. What I should have expected would have been • lying on the east side of the terrace,' or 'opposite to the terrace.' I do not see why the definition oppo Bite 'should be confined to opposite to the particular piece of land thereby conveyed, if the parties were stipulating to have the whole of the land unbuilt upon opposite the terrace. If that were the intention, it would have been clearly expressed on both sides, and there would not have been a distinct reference to the particular plat of land conveyed. The construction, there. fore, which makes every word operative would be, that there should be no building on the piece of land lying to the east of the terrace and also oppoBite to the plat conveyed; and then the word 'opposite' becomes more definite, and the land must possess both the qualities of being on the east side an i also opposite. The scheme was, that this gentleman, being minded to make a terrace, and to give every person some land opposite to his house, free frorn buildings, makes a particular covenant with each person in the terrace that the piece of land opposite his house should not be built upon; and if the terrace had been completed, each party would have had his house, and a piece of land opposite unbuilt upon; and in a certain sense, though very inadequately, there would have been a security that the whole land should not be built upon. But in that case every one would have bad to rely upon his neighbor, as either of them might have released his covenant, and it might have been reduced to this, that one might be left with only a strip of land opposite an. built upon to enable him to look from his own windows to the distant country, and to obtain light and air. That would be a very improbable agreement; still, it is not a benefit to be altogether despised, or so utterly im. probable a contract as to authorize me to give a more extended operation to the covenant. I am therefore compelled to come to the conclusion, look. ing to the absence of the recital of an intention that the whole of the land should not be built upon, and to the covenant alone, and the effect which I am bound to give to every word if it can have a distinct legal bearing and is not mero tautology, I am reluctantly compelled to decide that the meaning is such as I have described, and that the plaintiff is noi entitled to relief ": Patching v. Dubbins, Kay, 1, 14.
Where the covenant is, not to build within a certain distance from the street on which the land is bounded, the erection of a bay-window, which has the effect of carrying the front line of the building forward beyond the building line so agreed upon, and to that extent obstruoting the lateral view of other owners, is a violation of the covenant, and will be enjoined in equity; and this, although the structure does not rest upon the ground, but is es. tende l out from the house at a distance of four feet above the ground, and from that point to the top of the building. In so holding, the court, speak. ing through Mr. Justice Soule, said: “We cannot regard this addition as an ordinary projection or variation in detail in the arrangement and ornamen. tation or the front of the house, which the parties to the deed from the city mas havo contemplated as being proper under the provisions of the deed. The addition is, in substance and effect, a removal of the front line of the house three feet and three inches nearer to the street than the deed permits. The effect on the adjoining estates is substantially the same as if the addition were supported by a wall rising from the ground perpendicularly to its front line instead of being supported, as it now is ": Sanborn v. Rice, 129 Mags. 387, 397.
Tho deed of a lot of ground bounded on a street contained a condition that "no dwelling-house or other building shall bo erected on the rear of ssid lot." The deed also recited that the building then on the land conformed be the condition in view a this racita! it was held that the deed presented