## Facts

- A coastal tract at Brier Neck in Gloucester, Massachusetts was developed and sold as residential lots under substantially uniform deed restrictions.
- Plaintiffs owned lots in the southerly portion of the tract and built summer residences consistent with the residential character contemplated by the restrictions.
- Typical restrictions limited each lot to “only one dwelling house,” required a minimum construction cost, and limited certain outbuildings absent written consent.
- The northerly, marshy portion was later divided into parcels and, in 1923, conveyed with restrictions substantially similar to those used in the earlier sales.
- The instrument imposing the 1923 restrictions on the northerly parcels was registered on January 23, 1923.
- A later deed conveyed the entrance parcel (lot D) to defendant Van Dam subject to the prior restrictions to the extent then in force and applicable.
- Van Dam erected and operated a one-story commercial building on lot D for selling ice cream and related goods and serving food to the public.
- Plaintiffs sought to enjoin the commercial use as inconsistent with the tract’s residential restrictions.

## Issues

1. Whether a restriction that “only one dwelling house may be maintained” is violated by constructing and operating a commercial building on the lot.
2. Whether earlier purchasers in a development may enforce restrictions imposed later on another parcel when the later restrictions were imposed pursuant to a general scheme for the entire tract.
3. Whether municipal zoning that permits business use affects enforceability of private equitable restrictions.
4. Whether alleged nonenforcement of other restrictions, plaintiffs’ minor violations, or a minor prior infraction in defendants’ chain of title bars enforcement.
5. For restrictions limited to thirty years by G.L. (Ter. Ed.) c. 184, § 23, when the limitations period begins to run as to a particular parcel, including registered land.

## Decision

- The Supreme Judicial Court of Massachusetts affirmed a permanent injunction barring defendants from erecting, using, or maintaining any building on the lot for other than dwelling-house purposes.
- The court held the “only one dwelling house” restriction was violated by the erection and maintenance of a business building.
- The court found the restrictions on the northerly parcels were imposed pursuant to a general scheme for the entire tract and were enforceable by earlier purchasers.
- The court held municipal zoning permitting business use did not affect existing equitable restrictions.
- The court rejected defenses based on other owners’ violations, some plaintiffs’ lesser violations, and a minor earlier infraction related to the defendants’ lot.
- The court held the thirty-year period under G.L. c. 184, § 23 runs against a parcel from the date the restriction is first imposed on that parcel, and for registered land from the date of registration of the instrument imposing the restriction.

## Legal Principles

- A restriction limiting a lot to “only one dwelling house” can function as a residential-use restriction and is breached by establishing a commercial building and use on the premises.
- Restrictions imposed pursuant to a common general scheme of development are enforceable in equity by lot owners within the scheme against later purchasers whose deeds impose the same scheme-based restrictions.
- Municipal zoning determines permissibility under public law but does not extinguish or modify private equitable servitudes created by deed restrictions.
- Nonenforcement of other restrictions, minor violations by other owners or by plaintiffs, or a minor earlier deviation does not, without more, establish waiver or abandonment barring enforcement of a material residential restriction.
- When a statutory thirty-year limit applies to equitable restrictions, the period is measured parcel-by-parcel from the date the restriction is imposed on that parcel; for registered land, from the registration date of the instrument imposing the restriction.

## Conclusion

The court enforced a common-scheme residential restriction to prohibit a commercial refreshment building on a lot at the entrance to a seaside subdivision, holding that zoning permission did not defeat private servitudes, minor unrelated violations did not bar relief, and the statutory thirty-year limit runs from the restriction’s imposition (and registration) on the specific parcel.


Snow v. Van Dam, 291 Mass. 477 (1935)