CITY OF WORCESTER vs. PARK CONSTRUCTION CO., INC. (and a companion case ).

EDWARD CANTY and others vs. ALFRED M. DONOVAN and another. [Note 1]

361 Mass. 879

April 6, 1972

This is a bill in equity brought by the owners of one-story

Page 880

summer houses on lots within an alleged development scheme to restrain permanently the owners of a lot acquired in 1959 within the alleged scheme from adding a second story to their one-story house. The defendants appeal from a final decree permanently enjoining them from using their lot other than for a one-story private dwelling and ordering them to remove a second story addition they constructed on that lot. The deeds to the plaintiffs' lots and the defendants' lot contain almost identical restrictions against use except as one-story private dwellings. The original tract from which all the parties' lots were subdivided has a view to the ocean. Despite the omission of the restrictions in the original sale of some of the lots, the judge found that the plaintiffs had sustained the burden of proving that the one-story restrictions were pursuant to an original general scheme of development for the benefit of the entire tract and, therefore, were enforceable by the plaintiffs as appurtenant to their land. Snow v. Van Dam, 291 Mass. 477 , 480-484, and cases cited. Gilbert v. Repertory, Inc. 302 Mass. 105 , 107. Rahilly v. Addison, 350 Mass. 660 , 663. We agree. "Neither the restricting of every lot within the area covered, nor absolute identity of restrictions upon different lots, is essential to the existence of a scheme." Snow v. Van Dam, supra, at 483, and cases cited. Am. Law of Property, Section 9.29. See G. L. c. 184, Section 26, subsec. 5. The evidence supports the judge's findings that the restrictions were pursuant to a common scheme for the tract, that the restrictions were of actual and substantial benefit to the plaintiffs as required by G. L. c. 184, Section 30, that at least the plaintiffs Clemenzi were not barred from maintaining this suit by G. L. c. 184, Section 26, and that none of the factors listed in G. L. c. 184, Section 30, as precluding equitable relief or limiting the plaintiffs' recovery to money damages, exists in this case. See Rahilly v. Addison, supra, at 663-664. Compare Donoghue v. Prynnwood Corp. 356 Mass. 703 , 706-708.

Decree affirmed with costs of appeal.

FOOTNOTES

[Note 1] Maureen Donovan.