(dissenting)
I am unable to agree with the majority in their interpretation of the covenant quoted in the opinion. I dissent and feel I should give my reasons for doing so.
The rule of construction of a covenant, such as this, is well recognized by the courts. It was ably stated by Chief Justice Rugg in Allen et al. v. Massachusetts Bonding & Insurance Company, 143 N. E. 499, 33 A. L. R. 669.
*285“The inquiry in this respect is to ascertain the intention of the parties in executing and accepting the deeds. That intention is to be found in the words used, interpreted in the light of all the material circumstances and the pertinent facts known to the parties. A servitude over one parcel of land for the benefit of another can be established only when it appears to have been the intention of the grantor, by inserting in his deed words of restriction, to create a right inuring to the benefit of another parcel of land and to be annexed to it as an appurtenance. Bessey v. Ollman, 242 Mass. 89, 91, 136 N. E. 176, and cases there cited.”
The rules of construction
“.....should not be applied in such a way as to defeat the plain and obvious purposes of a contractual instrument or restriction.”
Brown, et al. v. Hojnacki et al. (Ct.), 259 N. W. 152, 97 A. L. R. 621.
“If we were to consider only the precise language of the covenant, we might agree with the contention of the defendant, but, under the circumstances of this case, the rights of the parties are not to be determined by a literal interpretation of the restriction. It is to be construed in connection with the surrounding circumstances, which the parties are supposed to have had in mind at the time they made it, the location and character of the entire tract of land, the purpose of the restriction — whether it was for the sole benefit of the grantor or for the benefit of the grantee and subsequent purchasers,......”
Library Neighborhood Association v. Goosen, 229 Mich. 89, 201 N. W. 219-220.
The majority opinion states that “a restrictive covenant ought not to be extended by construction beyond the fair meaning of the words.” In this view the majority opinion not only narrows and limits the interpretation of the cove*286nant to “a fair meaning of the words” but ignores the general rule enunciated by Chief Justice Rugg, swpra, that the words used must “. . . . be interpreted in the light of all material circumstances and the pertinent facts known to the parties.” This covenant is nothing more than a contract and the usual rules of construction are to be followed, if the covenant is “.......reasonable, not contrary to public policy, not in restraint of trade, and not for the purpose of creating a monopoly.” 14 A. J. Sec. 206, page 616. It is not argued, contended or claimed that the covenant under consideration violates this rule.
I have no quarrel with the majority ruling that motor vehicles do not come within the definition of “building or structure.” I readily admit that motor vehicles are not within that category.
What was the intention of the grantors in inserting the restriction in their deed and the intention of the grantee when he accepted the deed? It follows, of course, that the execution of a deed is the culmination of negotiations between the parties and expresses their understanding.
In 1898 Walter S. and Edward S. Higgins were the owners of a large tract of land of which Lots 90 and 190 were a part. It being shore property it was their purpose to so dispose of this property as to make it attractive to would-be purchasers, and it requires no stretch of the imagination, to conclude that one of the inducements offered would be that purchasers of Lot 90 would have an unobstructed view from Lot 90 over Lot 190, and this is what the grantee expected when he accepted the deed.
While such a restriction might not be too important as to inland property, such is far from the case where seashore property is involved. One of its most valuable assets is a complete view of the ocean.
*287The covenant did not prohibit the erection of any building or structure, but only those of such a character as to interrupt or interfere with the view. Is it to be maintained that the owners of Lot 190 were at liberty, at all times, to erect and maintain on that lot any other object on its surface which could interrupt or interfere with the view? Did the parties have in mind interruption or interference by anything but buildings or structures? If so, then the view could be not only obstructed and interfered with but completely destroyed. If they had in mind the view, as I believe they did, then no object of any kind could be constructed or maintained on Lot 190, “. . . . of such a character as to interrupt or interfere with the view.”
The view was one of the important incidents of the transaction. It is not reasonable to conclude that the parties intended to limit obstruction and interference to the view, to “building or structure” alone. This interference would, for all practical purposes, completely destroy the purpose of the covenant. Obstruction and interference, of any kind, other than “building or structure” would, in fact, destroy what the parties intended to accomplish.
I would deny the appeal and sustain the decree below.