The development of the residential portion of the Back Bay achieved a high degree of architectural harmony largely as a result of detailed restrictions contained in the original deeds. These restrictions governed the buildings that would be constructed on the land being conveyed, and were binding on those who bought the land and on their successors.
The deed restrictions varied by the entity conveying the land, and also evolved over time. They usually restricted the type of buildings that could be built to dwelling houses and their appurtenant structures, and limited the type of material that could be used to brick, stone, or other non-combustible material. They also specified the number of feet the houses were to be set back from the arterial (north-south) streets, and required a minimum height (limiting the maximum height was not a concern in this pre-elevator era). The deeds also sometimes included specifics requirements that party walls be centered on the property lines with the costs be shared equally among the owners (frequently, however, these requirements were imposed through subsequent deeds or individual party wall agreements between owners; click here for more details on party wall agreements and stipulations).
The deeds from the Commonwealth included the most comprehensive restrictions, but the deeds from the Boston and Roxbury Mill Corporation and Boston Water Power Company included similar language. Most of the deeds required the restrictions to be observed in perpetuity; however, those from the Boston and Roxbury Mill Corporation contained a “sunset” provision ending the restrictions after several decades.
The deeds for lands owned by the David Sears family did not include building restrictions. These lands were located on the south side of Commonwealth from a line mid-block between Exeter and Fairfield west to Massachusetts Avenue. After they were sold, the purchasers adopted agreements to require building restrictions similar to those in the deeds from the Commonwealth. The agreements for the blocks between Exeter and Hereford included both the south side of Commonwealth and the north side of Newbury. The agreement for the block between Hereford and Massachusetts Avenue, however, only included Commonwealth (the Newbury block being planned as the location for stables).
The Commonwealth’s lands were administered by the Commissioners on Boston Harbor and the Back Bay (which became the Commissioners on the Back Bay in 1855, the Commissioners on Public Lands in 1861, and the Harbor and Land Commission in 1879).
The original Commonwealth deed restrictions specified (1) “That any building erected on the premises shall be at least three stories high, for the main part thereof, and shall not, in any event, be used for a stable, or for any mechanical, [mercantile, if the building is on Commonwealth Avenue,] or manufacturing purposes; (2) that the front wall thereof, on [avenue or street], shall be set back [twenty, twenty-two, or twenty-five, according to location,] feet from said [avenue or street], provided that steps, windows, porticos, and other usual projections appurtenant thereto, are to be allowed in said reserved space of [twenty, twenty-two, or twenty-five] feet]; (3) That no cellar or lower floor of any building shall be placed more than four feet below the level of the mill-dam, as fixed by the top surface of the hammered stone at the south-easterly corner of the emptying sluices; (4) That a passage-way [sixteen, or twenty-five, according to location] feet wide, is to be laid out in the rear of the premises, the same to be filled in by the Commonwealth, and to be kept open and maintained by the abuttors (sic) in common. And said Commonwealth reserves the right to enter upon the premises, by its agents, and, at the expense of the party at fault, to remove or alter, in conformity with the above stipulations, any building, or portion thereof, which may be erected on the premises by the said grantees, or their representatives or assigns, in a manner or to a use contrary to the above stipulations.’”
The setback requirements applied to the streets running east-west: twenty feet on Commonwealth Avenue, and twenty-two feet on all other streets except the south side of Boylston, where they were twenty-five feet. There were no setback requirements for the streets running north-south.
On November 27, 1858, the Commissioners voted to clarify that the prohibition on stables would not be enforced “in such a manner as to prevent the erection and use of private stables by gentlemen as appurtenances to their own dwelling homes; provided, such stables are so constructed and used as not to be justly offensive to the occupants of the surrounding buildings.” This clarification was subsequently published in the land auction catalogues issued by the Commissioners.
In January of 1863, the Commissioners revised the deed restriction with respect to the setback requirement to specify “that the front wall thereof on [street or avenue] shall be set back twenty [or twenty-two] feet from said [street or avenue] but steps, windows, porticos and other usual projections appurtenant to said front wall are to be allowed in this reserved space of twenty [or twenty-two] feet, subject to the following limitations, namely, first, that no projection of any kind (other than door-steps and balustrades connected therewith, and also cornices at the roof of the building,) will be allowed to extend more than five feet from said front wall into said space; and, second, that no projection in the nature of a bay-window, circular front or octagon front, with the foundation wall sustaining the same, (such foundation wall being a projection of the front wall,) will be allowed, unless any horizontal section of such projection would fall within the external lines of a trapezoid, whose base upon the rear line of the aforesaid space does not exceed seven-tenths of the whole front of the building, nor exceed eighteen feet in any case, and whose side lines make an angle of forty-five degrees with the base; and each house in a block shall be considered a separate building within the meaning of this limitation.”
In their annual report for 1863, the Commissioners explained that this revision was “to avoid confusion” regarding the meaning of the term “usual projections.” The report also noted that that “the indenture between the Commonwealth and the Water-Power Company of December 27, 1856, contained a clause relative to ‘usual projections’ which the company, by the act of its president, in writing, now agree to accept according to the new form of conveyance adopted by the Commonwealth.”
In March of 1869, testifying in Linzee v. Mixer (see below), Commissioner Franklin Haven commented on the circumstances that led to adopting this more specific language: “Soon after the Commonwealth had given deeds of land on the Back Bay…it became a question of what projections could be built out into the reserved space. Some persons built octagonal projections; and, to avoid future difficulty, the commissioners established the new form of deed which has been used since January 28, 1863… The commissioners always considered that this was a fair construction of the restrictions and limitations of the former deed, and on October 26, 1865, voted accordingly.”
The drawing to the left illustrates graphically the setback requirement of the 1863 (and later) deed restrictions.
During the ensuing decades, most owners, architects, and builders respected the restrictions. However, there were periodic complaints, usually from abutters, about violations, most of which appear to have been resolved without legal action.
In their Annual Report for 1883, the Harbor and Land Commissioners noted that “the attention of the Board is called with increasing frequency to cases of the alleged erection or use of buildings, on the Back Bay, in a manner contrary to the stipulations of the deeds by which the premises have been granted by the Commonwealth.” … “The restrictions which inhere in the title of the Back Bay lots, were wisely adapted to make them desirable to purchasers, and to enhance their value to both seller and buyer, by carefully guarding the manner of their occupation and use. The intention was, and the result has been, to make the Back Bay an especially attractive place for residence …”. “The distinctive character of the Back Bay, in features here referred to, can be kept intact and permanent, only by resolutely maintaining the limitations upon its occupation and use which have made it what it is.”
The report observed that “it may be presumed that …violations occur oftener from ignorance, or inadvertence, or bad advice, than from deliberate purpose.” The report then restated the deed restrictions and published an extensive set of rules designed to further clarify the deed restrictions.
As the Commission noted in its 1893 Annual Report, in most cases complaints about alleged violations “notice of the complaint has resulted in the removal of the features principally objected to, and no action on the part of the Board has become necessary.”
The primary areas of controversy as they affected the residential portion of the Back Bay were (a) the right of a property owner to maintain private stables, (b) the extent and nature of building “projections” permitted into the reserved area created by the mandatory setback from the street, and (c) the extent to which bay windows and other structures projecting into the passage-ways (alleys) interfered with the obligation that they be kept open and maintained by the abutters.
Stables in the Back Bay
On the subject of stables, as noted above, the deed restrictions contained language prohibiting stables, but in 1858 the Commissioners had stated their intention that private stables would be permitted but that public stables would not. In about twenty of the earlier deeds, the phrase “except a private stable” was added; all of the rest of the deeds contained the absolute prohibition, but the auction catalogues for the land included the 1858 clarifying language.
The right to maintain a private stable was challenged in several cases, among them objections to stables built by Samuel Hooper at 25-27 Commonwealth and by James Case at 120 Commonwealth. In each case, the right to maintain a private stable was upheld.
In the case of William Beals v. James B. Case and wife (138 Mass. 138), William Beals was the owner of 125 Newbury, directly across the alley from 120 Commonwealth. He asserted that the deed restrictions clearly prohibited stables and that he was unaware of the 1858 policy adopted by the Commissioners allowing stables for private use, having purchased his land from a previous owner and never having seen the original auction catalogue issued when the land was sold by the Commonwealth, in which the 1858 policy was stated. In its decision dismissing his complaint, the Supreme Judicial Court ruled that when he took his deed, he was “bound at his peril to ascertain” the “circumstances and surrounding facts with respect to the land he was purchasing” and that the note in the auction catalogue was “a public declaration by the Commonwealth, intended to notify all purchasers of the scheme and purposes of the grantor.” In commenting on the decision in its 1885 Annual Report, the Commissioners on Harbor and Lands noted “the case may probably be considered as decisive against the right in equity to restrain the proper us of buildings as private stables, as between all parties holding or deriving titles under” deeds acquired from the Commonwealth through auction.
Projections into the Reserved (Setback) Area
The Commission and the courts were more circumspect with respect to structures which projected into the reserved area protected by the setback requirements in the deeds.
Notable violations in the residential portion of the Back Bay which ultimately resulted in court action occurred at 16 Marlborough, 17 Commonwealth, and 217 Commonwealth (the Algonquin Club). Each of these cases turned on the extent of the encroachment on the reserved area and whether the builder had been given fair warning that his structure violated the restrictions. And in each case, the builder was required to modify a completed building to bring it into compliance.
In 1865, John Mixer built a house at 16 Marlborough which included a bay almost the entire width of the house with a porch extending to the west on the same plane as the front of the bay, topped with a balustrade. On the western side, the porch area extended out beyond the stairs of the neighboring house to the west at 18 Marlborough and had a window looking onto the neighbor’s stairs. In October of 1866, after unsuccessfully attempting to convince John Mixer not to build 16 Marlborough in this manner, the owners of 18 and 20 Marlborough — Miss Ann Duncan Torrey and her sister, Mrs. Sarah Parker (Torrey) Linzee — brought legal action to compel compliance with the deed restrictions by John Mixer and by Mrs. Marianne (Mason) Crafts, who had purchased the house by early 1866. In March of 1869, the Supreme Judicial Court agreed, ruling that “the plaintiffs are entitled to relief as prayed for” and sending the matter “to a master to consider and report in what form and manner the relief can be given with the least detriment to all parties in interest.” Ultimately, the front of the house was rebuilt. Linzee v Mixer (101 Mass. 512).
In 1866-1867, William Howard Gardiner built a house at 17 Commonwealth, the front wall of which was set back the required distance from the street but which also included in front of the house a structure three and one-half feet high, extending from the front wall of the house to the street, the top of which was covered by turf and the interior used for coal bins. After complaints from the abutters, in June of 1867, he was requested by the Commissioners on Public Lands to remove the structure extending into the reserved area or otherwise make it conform with the deed restrictions. He did not do so, and In August of 1867, the Attorney General filed legal action. In May of 1875, the Supreme Judicial Court ruled that “so much of it as rises above the usual line of the reserved spaces in front of the houses on Commonwealth Avenue must therefore be removed within a reasonable time.” Attorney General v. William H. Gardner (117 Mass. 492).
In 1887-1888, the Algonquin Club built its clubhouse at 217 Commonwealth, the street level story of which projected across the entire front of the building, connecting the area between the bays the east and west ends of the building with the central portico. This street level was one story high, with balustrades above to create a balcony accessible from the first floor stretching across the center of the building, between the two flanking bays. In September of 1887, the Harbor and Land Commission informed the Club of this violation, but it proceeded to complete the building without change. In June of 1888, the Attorney General filed legal action to secure the Club’s compliance.
In a December 10, 1889, article commenting on the pending litigation, the Boston Globe observed that “the members of the club are much disturbed over this menace to their beautiful building…the remodeling…will not only cost considerable money, but will ruin the design.”
In April of 1891, the Supreme Judicial Court ordered that the building be remodeled to comply with the deed restrictions (Attorney General v. Algonquin Club; 153 Mass 447). The front of the building was subsequently rebuilt accordingly.
In 1883-1885, Marcellus Seth Ayer, on behalf of the Working Union of Progressive Spiritualists, built the First Spiritual Temple at 26 Exeter. It included a stone porch on the Newbury Street façade, at the east end of the building, with solid walls projecting at right angles to the front wall into the reserved setback area. The Harbor and Land Commissioners brought legal action to compel removal of the porch. At issue was whether a porch qualified within the meaning of the term “portico and other usual projections” as used in the deed restrictions. In February of 1889, the Supreme Judicial Court dismissed the complaint, concluding that the meanings were sufficiently consistent and that the permission to construct projections into the reserved area “extends to more serious structures, with closed sides, and therefore there is no reason for excluding porches.” Attorney General v Marcellus S. Ayer and others (148 Mass. 584).
In 1883-1884, Dr. James Batchelder Bell and Dr. William Palmer Wesselhoeft built houses at 176 and 178 Commonwealth, a symmetrical pair, 176 Commonwealth with a bay on the west and 178 Commonwealth with a bay to the east. Each house had two front entrances, one on the outer side of the front façade, for use by the residents, and the other on the inner side, where the two houses joined, for use by patients. The porches to the entrances were enclosed and fronted with three arches (the two entrances to the medical offices sharing the center porch and arch) with windows in the bays between the arches, creating a continuous plane across the entire front of the two buildings, similar in appearance to the Algonquin Club design rejected by the court in 1891.
In the early 1890s, Dr. Henry Orlando Marcy purchased 180 Commonwealth and in October of 1893, he filed a complaint alleging that 176-178 Commonwealth improperly encroached on the reserved area. In 1894, the Harbor and Land Commissioners ruled that it did not and that the houses did not need to be modified. The Commissioners concluded that each arched entrance was an allowed portico within the meaning of the deed restrictions (unlike the original design of the Algonquin Club, where the structures between the bays did not serve as an entrances), The Commissioners noted that the concern about 176-178 Commonwealth arose only because they each had two entrances, and “if the doors to the doctors’ offices did not exist, and the projections over them, being no longer porticos, were removed, the nature of the construction would resemble that of a large number of houses on the Back Bay on land similarly restricted.” They concluded that nothing in the deed restrictions prevented a house from having two entrances and “if a house has two front doors, there must be a right to have a portico over each, so that the extension of the projections along the whole front of the building by the conjunction of the bay window with the two porticos may be said to be an incidental result of the exercise of a permission expressly given.” The Attorney General subsequently concurred with this conclusion and no further action was taken.
Passageways (Alleys) In the Back Bay
The third area of conflict was the extent to which the deed restrictions requiring that the passageways be “kept open and maintained by the abuttors (sic) in common” prevented bay windows and other projections into the passageways (alleys). This issue was raised primarily in the non-residential portion of the Back Bay, but nevertheless had implications for the entire neighborhood.
The rules promulgated by the Commissioners on Harbors and Lands in 1883 augmented the deed provision to specify “No part of the building can project into or over this passage-way. The passage-way must be kept open its full width from the ground up to the sky.”
In 1884, Henry Bigelow Williams began construction of the Hotel Kensington at the northeast corner of Boylston and Exeter, and proposed to install bay windows projecting into the alley behind the building. In April of 1884, the Commissioners notified Mr. Williams that the windows would violate the deed restrictions. He proceeded to construct the windows and in May of 1884, the Attorney General filed legal action to compel removal of the windows. In June of 1885, the Supreme Judicial Court found that “a passageway sixteen feet wide was not merely to be kept open at the ends, but open to the sky throughout its entire length, for the general convenience and benefit,” and ordered that the bay windows be removed. Attorney General v Henry Bigelow Williams (140 Mass. 329).