Barry v. Smith

• Decision Date: 03 March 1906
• Citation: 191 Mass. 78,77 N.E. 1099
• Parties: BARRY v. SMITH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

191 Mass. 78

77 N.E. 1099

BARRY v. SMITH et al.

Supreme Judicial Court of Massachusetts, Middlesex.

March 3, 1906

COUNSEL

James J. Irwin, for plaintiff.

Walter S. Thompson, for defendants.

OPINION

LORING J.

This was an action of tort, containing three counts. The first two were for trespass quare clausum fregit. The first count alleged that the plaintiff was the owner of a close situated at 99 Tremont street, in the city of Everett, and that the defendants forcibly entered on the same about the middle of January, 1902, and 'wrongfully and unlawfully roped off the approach to said premises, and used a portion of said premises in connection with the premises adjoining thereto as a yard for a smallpox hospital, and used the said premises for said purpose from day to day thereafter for a long period of time.' The second count alleged that the plaintiff owned two lots in said Everett, one on the corner of Tremont and Everett streets, and one on Everett street, and 'that on or about the 27th day of January, 1902, the defendants unlawfully and without the consent of the plaintiff took possession of said lots of land and the buildings thereon and thereafter occupied said premises of the plaintiff in connection with a certain smallpox hospital established by the defendants.' The third count alleged the ownership of the two lots of land mentioned in the second count, and of a third lot on Tremont street, on which were buildings containing a store and apartments let to tenants at will and one occupied by himself; and that on or about the 27th day of January, 1902, the defendants negligently and carelessly and unlawfully established a smallpox hospital on the premises adjoining the plaintiff's lots aforesaid on Everett street and on the corner of Tremont and Everett streets, and in the immediate vicinity of the plaintiff's house on Tremont street, and there negligently and carelessly and unlawfully maintained said smallpox hospital for a long period of time; that 'said hospital, by reason of its location and maintenance as aforesaid, was a serious nuisance, and a great damage to the plaintiff's property aforesaid, and said hospital was established and maintained by the defendants against the protest of the plaintiff; that in consequence of the careless and negligent and unlawful location and maintenance of said hospital the plaintiff's said store and apartments were vacated by the tenants occupying same at the time said hospital was established, and the plaintiff was unable, by reason of such location and maintenance of said hospital, to rent said store and apartments for a long period of time; that by reason of the idleness of said store and apartments, occasioned as aforesaid, the plaintiff has been put to great expense for repairs; that since the establishment of said hospital, and in consequence thereof, the streets in the immediate vicinity of the plaintiff's premises have been but little used by the public generally, and the rental value of the plaintiff's said store has been greatly depreciated; that since the establishment of said hospital, and by reason thereof, the rental value of the said apartments has also been greatly depreciated in value.' The defendants' answer set up a general denial and the special defense that they were members of the board of health of the city of Everett, and on November 22d occupied certain premises adjacent to the plaintiff's for a contagious hospital, and on December 1, 1901, took a lease thereof from the owner of it, and that in all that they did they were acting in their official capacity as members of the board of health of said city, and that they are not liable.

At the trial it appeared that the plaintiff owned a building on the corner of Tremont and Everett streets, and another farther down Tremont street. Next to the house on the corner was a house fronting on Tremont street, and distant 16 1/2 feet therefrom, which ran along on the back of the plaintiff's Everett street house and distant 19 feet from that house. In this adjoining house a case of smallpox broke out in November, 1901, and was treated there. On or about January 10, 1902, the patient had been discharged, and the quarantine of the house discontinued. The plaintiff suffered no damage from the treatment of this case. Afterwards, on January 27, 1902, the defendants brought to this house a patient who had fallen ill with smallpox in another part of the city, and from then until some time in September the defendants brought about 50 other smallpox patients and treated them there. One of the defendants told the plaintiff, on the pay that the first patient was brought there, 'that it was a waste of time to make any protest about the matter, as they had decided to use the house as a hospital.' Before the establishment of the hospital the land of the plaintiff between his house on the corner and the boundary line between his land and that on which the building used as a hospital was situated had been used as a passageway to the back entrance of the plaintiff's house on the corner and of his house beyond on Everett street. There was no fence between the plaintiff's land and the land leased by the defendants, but the boundary line was marked by a division post. Ambulances carrying patients to the hospital and taking bodies from it passed over the plaintiff's premises to and from a door on the side of the hospital facing the plaintiff's corner house. There was also evidence that 'nurses employed at the hospital used the plaintiff's land for recreation purposes, and sundry utensils used in the hospital were deposited and left on the plaintiff's land by the nurses and attendants at the hospital. These nurses were employed by the worked under the directions of the defendant. After the hospital had been in operation for some time, a rope fence was extended around a portion of the hospital. Between this rope fence and the building used as a hospital, and within the inclosure thus roped off, a portion of the plaintiff's land was included, and this rope fence was afterwards suffered to remain as originally located until the hospital was finally abandoned. One of the stakes supporting this rope fence was located upon the plaintiff's land, and was put there at the time the rope fence was erected. The plaintiff never gave the defendants permission to occupy or use any portion of his premises, and the same or any portion thereof was not taken by virtue of any warrant or process issued therefor. The passageway on the plaintiff's land was closed by the rope fence, and the plaintiff and his tenants were excluded from the use of it.

The plaintiff also introduced evidence that, 'after the hospital had been in operation a couple of months, eight or nine cases of smallpox arose in six or seven houses in the immediate vicinity, including the plaintiff's house on Everett street, and the evidence introduced by the plaintiff tended to show that smallpox was a dangerously contagious disease, and that the smallpox cases treated at the hospital caused the cases which arose in these houses in the neighborhood.' The plaintiff also introduced evidence that 'in consequence of the location and maintenance of the hospital' his store and apartments were vacated, and that he 'lost in rents by reason of the vacancies occasioned by the presence and operation of the hospital, and the repairs necessitated by the continued idleness of his premises, about $1,600,' and that when he got tenants it had to be at a reduced rate, making 'a total loss to the plaintiff in rents, repairs, and depreciation, on account of the location and maintenance of the hospital, of from $3,100 to $4,100.' The plaintiff offered to prove 'that the defendants had maintained the hospital in a negligent and careless manner, and that their carelessness in this respect made the hospital a nuisance to the plaintiff. The court refused to admit the evidence thus offered, and the plaintiff excepted.' The plaintiff also offered to prove 'that there were suitable locations for a smallpox hospital within the city of Everett where the maintenance of the hospital could cause little or no damage to surrounding property, and that the defendants were negligent and careless in locating a smallpox hospital where they did; but the court refused to admit this evidence and the plaintiff excepted.'

The defendants put in evidence the lease annexed to their answer, to which the plaintiff excepted. In addition, 'the defendants testified orally that they were members of the board of health of the city of Everett, and that what they did in the establishment and maintenance of the hospital they did as members of the board of health of the city of Everett.' To this the plaintiff excepted. No evidence of the election, appointment, or qualification of the defendants as members of the board of health of the city of Everett was introduced, other than their own statements that they were such officers. On cross-examination, the defendants testified 'that in locating the hospital where they did they paid no attention to the fact that it was located within 100 rods of inhabited dwellings in the city of Malden; that they did not consider smallpox a dangerous disease; and that if said hospital was properly conducted it would not be a source of danger.'

The plaintiff asked for the following rulings:

'(1) The defendants, as members of the board of health of the city of Everett, had no right to establish a hospital for the general treatment of smallpox cases gathered from various parts of the city of Everett and covering a period of several months; and if they did this they exceeded their powers as members of the board of health, and they are liable for such damages as the plaintiff suffered thereby.

'(2) Boards of

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