Alter v. Dodge

• Decision Date: 11 January 1886
• Citation: 140 Mass. 594,5 N.E. 504
• Parties: ALTER v. DODGE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

140 Mass. 594

5 N.E. 504

ALTER

v.DODGE.

Supreme Judicial Court of Massachusetts.

Filed January 11, 1886.

The facts appear in the opinion.

D.L. Withington, for plaintiff.

J.C.M. Bayley, for defendant.

MORTON, C.J.

This cause was set down for hearing, and was heard upon the bill and answer. All the allegations of the answer must be taken to be true, and the plaintiff therefore concedes that the only ground upon which she can maintain the bill is that the license granted to the defendant by the board of aldermen of Newburyport is insufficient and invalid. The defendant is the owner of a brick building used as a manufactory of shoes, situated within 500 feet of the plaintiff's dwelling house. After due hearing, the board of aldermen granted him a license in the following terms:

“CITY OF NEWBURYPORT-STEAM-ENGINE LICENSE.

“This is to certify that Nathan D. Dodge has been licensed by the board of aldermen of the city of Newburyport to erect for use a stationary engine, to be propelled by steam-power, at his shoe manufactory on Prince St.”

This license was duly recorded. Pub.St. c. 102, § 47, provide that “no stationary engine, propelled by steam or other motive power, shall be put up within 500 feet of a dwelling-house, unless a license therefor has been first granted and recorded in the manner herein provided.” The manner of granting such license is found in section 40 of the same chapter, which provides for the granting of licenses by the mayor and aldermen of cities and the selectmen of towns, “prescribing the place where the building shall be erected in which the steam engine or furnace is to be used, and the materials and construction thereof, with such regulations, as to the height of flues and protection against fire, as they deem necessary for the safety of the neighborhood.” The defendant's license sufficiently prescribes the place, viz., at his shoe manufactory on Prince street; and, as the building in connection with which it was to be used was already erected, the designation of the building rendered unnecessary any other description of the materials, and construction thereof. The license contemplates that the defendant should erect the engine at and as a part of his shoe manufactory, and it would be too narrow a construction to hold that he violated or exceeded his license by covering it with an engine-house added to his building, and of the same materials. If it is essential, as a condition precedent to the validity of the...