Bill in equity to enforce restrictions contained in a deed of real estate. Case reserved for the determination of this Court.

Lathrop, J. - No question is made as to the validity of the restrictions in the present case, and the only question is as to their interpretation. The language is, "that for ten years from January 1, 1891, no buildings shall be erected other than dwellings, with necessary outbuildings, said dwellings to cost not less than $2,000 each, and all of said buildings to be not less than twenty feet from the street line."

Although it is not stated in the report what the cost of the tent was, yet, as the bill alleges that its cost was less than $2,000, and the answer does not deny this, we assume that no question was made on this point. Is, then, a tent such as is described in the report and used in the manner therein set forth a building? The ordinary meaning of this word, it is said by Mr. Justice Morton, in Nowell v. Boston Academy of Notre Dame, 130 Mass. 209, is " a structure or edifice enclosing a space within its walls and usually covered with a roof." The tent in question was used by the defendants to live in with their families, although they did not sleep in it. It was fitted up with a stove for cooking, and with other furniture. While the defendants lived in their own house in another town in the winter, the fair construction of the report is that the tent was used as a dwelling at other times of the year during the daytime. Although the report finds that the tent was placed temporarily on the lots, it is also found that there is no intention of erecting a dwelling-house soon. On these findings, a majority of the court are of opinion that the tent was a violation of the terms of the restriction.

1 See also Congregational Society v. Stark, infra, p. 509. - Ed.

The remaining question is as to the stable. That a stable may be a necessary outbuilding may be assumed. But an outbuilding is something which is to be used in connection with a main building. Commonwealth v.Intoxicating Liquors, 140 Mass. 287, 289. And as there was no main building of the kind called for by the terms of the deed, we are of opinion that the stable in this case cannot be deemed to be a necessary outbuilding.

It follows that the plaintiff is entitled to a decree directing the removal of the tent and stable, and restraining the defendants from using the lots in the manner in which they have been using them.

Decree accordingly.

Rowland V. Miller

139 New York, 93. - 1893.

Earl, J. - The main contention of the parties is over the meaning and force of the restriction agreement. The claim of the appellant that it simply restrains nuisances cannot be sustained, and hence the numerous authorities cited by his counsel on the argument before us, have little or no application. If the agreement was intended simply to restrain any trade or business which was per se a nuisance, or which was carried on in such a way as to make it a nuisance, then it was wholly unnecessary. The law will always, upon the application of a party aggrieved, restrain and abate a private nuisance. This case is not governed by the general law as to nuisances, but by the force and effect of the covenants contained in the agreement.1

When the agreement was made, the parties thereto, desiring to improve, protect and benefit their lots, and consulting their respective interests, absolutely prohibited the carrying on of certain kinds of business specified upon the lots. They determined for them-selves that those kinds of business were undesirable in the vicinity of residences, and covenants restraining them can be enforced without any proof whatever that they are "injurious or offensive." A person owning a body of land and selling a portion thereof, may, for the benefit of his remaining land, impose any restrictions, not against public policy, upon the land granted he sees fit, and a court of equity will generally enforce them. Trustees of Columbia College v. Lynch, 70 N. Y. 440; Same v. Thacher, 87 Id. 311; Hodge v. Sloan, 107 Id. 244.

1 Plaintiff and defendant a< quired title to their respective lots from the same source and under similar restricttive 1 covenants. - Ed.

The business carried on by the Taylor Company is not among those kinds particularly specified in the agreement.1 But the claim of the plaintiff is that it is prohibited by the general clause in the agreement as " injurious or offensive to the neighboring inhabitants." This clause enlarges the scope of the agreement. It is a too narrow construction to hold that it prohibits only trades or kinds of business which are nuisances per se, for reasons already given, and for the further reason that nearly, if not quite, all the trades and business specially named are not such nuisances. Any kind of business may become a nuisance by the manner in which it is carried on, or from its location, and a business may be offensive to neighboring inhabitants and yet fall far short of being a legal nuisance, which a court of equity will abate as such.

This clause in the agreement must have a reasonable construction. We cannot suppose that the parties had in mind any business which might be offensive to a person of a supersensitive organization, or to one of a peculiar and abnormal temperament, or to the small class of persons who are generally annoyed by sights, sounds and objects not offensive to other people. They undoubtedly had in mind ordinary, normal people, and meant to prohibit trades and business which would be offensive to people generally, and would thus render the neighborhood to such people undesirable as a place of residence.

It cannot be doubted that the business of the Taylor Company was, within this definition, offensive to the neighboring residents. People of ordinary sensibilities would not willingly live next to a lot upon which such a business is carried on. An ordinary person desiring to rent such a house as plaintiff's would not take her house if he could get one just like it at the same rent at some other suitable and convenient place. Indeed, her house would be shunned by people generally who could afford to live in such an expensive house.