The burden of proof is on the plaintiff to show, from the terms of the grant to the defendant, or from the situation and circumstances, that it was the intention of the grantor in inserting the condition to create a servitude or right which should inure to the benefit of the lot of land now owned by the plaintiff, and which should be annexed to it as an appurtenance. Beals v. Case, 138 Mass. 138, and cases there cited. If such a servitude was imposed for the benefit of the lot now owned by the plaintiff, it must have been at the time of the grant to the defendant. Nothing that has happened since could impair the defendant’s title in this particular, without its consent. We are therefore to look to see if enough can be found in the deed itself, or in the situation and circumstances, fairly to show that any such right or easement was then created in favor of the lot which the plaintiff afterwards bought.
In the first place, it is apparent that the idea of keeping the lot open originated with the defendant. The original owners never had a scheme or plan that their lots in this neighborhood should not be built upon at all, but only that the buildings must be of brick and stone. This latter requirement is not mentioned in the deed to the defendant, and there is nothing to show that the defendant had notice of it. The ruling that the defendant’s land was not subject to that ■ restriction was right. The first suggestion of keeping the lot open is found in the vote of the city council authorizing the purchase of the two lots, one on the south side of Middle Street, and the other, being the lot now in question, on the north side, “ the latter to be forever kept open ” ; and the expenditure to be charged to the appropriation for grammar and primary schoolhouses. On the same day a resolution was passed authorizing the erection of a grammar schoolhouse on the south lot. The deeds of the two lots were taken simultaneously a few weeks afterward. The deed of the *533north lot contains the clause upon which the plaintiff now relies. It is as follows : “ But this conveyance is made on the express condition that no building shall ever be erected on the above-mentioned premises, and also that no wall or fence shall ever be placed on the above-mentioned premises within less than five feet of Middle Street, and that the same five feet shall forever remain open as a public sidewalk.”
It is to be observed that the deed contains no mention that this condition is imposed for the benefit of the adjacent lands, that no earlier deed had mentioned any scheme or plan to keep the lot open, that in point of fact there was no such scheme or plan, and that the lot now owned by the plaintiff was then vacant land, bounding on three sides on public streets, and in part, on one of these three sides, on a passageway. Even if facts which took place afterwards could be looked at, the deed to the plaintiff executed several years later contained no mention that any such right or easement existed for its benefit. It is more probable that the intention at the time of the grant to the defendant was to keep the lot open, to be used in connection with the schoolhouse, either as a playground or otherwise. This supposition will account for the insertion of the clause in the deed. But however this may be, an easement or servitude of this description ought not to he held to be imposed for the benefit of an adjacent lot of land, in the absence of any words in the grant itself implying it, unless the circumstances and situation at the time of the grant were such as to make it manifest that the condition or restriction or reservation was intended to be for the benefit of such adjacent lot, and to be annexed to it as an appurtenance. There is nothing in the facts of the present case sufficient to sustain the burden resting upon the plaintiff. In this respect, the case resembles Badger v. Boardman, 16 Gray, 559, Jewell v. Lee, 14 Allen, 145, Sharp v. Ropes, 110 Mass. 381, and Beals v. Case, 138 Mass. 138; and it differs from Peck v. Conway, 119 Mass. 546, and other cases, where the fact to be established sufficiently appeared.
Bill dismissed.