Commonwealth v. Parks

• Citation: 155 Mass. 531,30 N.E. 174
• Parties: COMMONWEALTH v. PARKS et al.
• Decision Date: 24 February 1892
• Court: United States State Supreme Judicial Court of Massachusetts

155 Mass. 531

30 N.E. 174

COMMONWEALTH v. PARKS et al.

Supreme Judicial Court of Massachusetts, Middlesex.

February 24, 1892

COUNSEL

Geo C. Travis, Asst. Atty. Gen., for the Commonwealth.

W.B Durant, for defendants.

OPINION

HOLMES J.

It is settled that within constitutional limits not exactly determined the legislature may change the common law as to nuisances, and may move the line either way, so as to make things nuisances which were not so, or to make things lawful which were nuisances, although by so doing it affects the use or value of property. Sawyer v. Davis, 136 Mass 239; Rideout v. Knox, 148 Mass. 368, 19 N.E. 390. It is still plainer that it may prohibit a use of land which the common law would regard as a nuisance if it endangered adjoining houses or the highway, and the legislature may authorize cities and towns by ordinances and by-laws to make similar prohibitions. Salem v. Maynes, 123 Mass 372, 374; Barbier v. Connolly, 113 U.S. 27, 5 S.Ct. 357. Furthermore, what the municipal body may forbid altogether it may forbid conditionally, unless its written permission is obtained beforehand. We see nothing in Newton v. Belger, 143 Mass. 598, 10 N.E. 464, or Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, and Baltimore v. Radecke, 49 Md. 217, to make us doubt the correctness of the decision in Quincy v. Kennard, 151 Mass. 563, 24 N.E. 860. Nor do we think it matters that the permission required is that of the aldermen, and not that of the whole city council.

In view of the foregoing principles and decisions, we are of opinion that the power, when deemed necessary for public safety, to prohibit blasting rocks with gunpowder without written consent is among the powers given by Pub.St. c. 27, § 15. ^[1] Equal powers are conferred upon the city council of Somerville by its charter. St.1871, c. 182, § 23. It would be a mere perversion to construe Pub.St. c. 102, §§ 60, 61, authorizing cities and towns to make ordinances and by-laws in regard to the use of explosive compounds, defined in section 68, not to include gunpowder, as cutting down the power which is given in the earlier chapter, and which we have no doubt extended to this case before the passage of St.1877, c. 216, from which the sections first cited are taken. It would be a still greater perversion to construe the sections giving authority over offensive trades to town boards of health as having such an effect. Pub.St. c. 80, §§ 80, 84, et seq.

The prohibition which Pub.St. c. 27, § 15, as construed by us, purport to authorize, is not such a taking of property as always to be beyond the police power, under Miller v. Horton, 152 Mass. 540, 547, 26 N.E. 100. Blasting might be a private or a public nuisance. Hay v. Cohoes Co., 2 N.Y. 159; Tremain v. Cohoes Co., Id. 163; Reg. v. Mutters, Leigh & C. 491. Forbidding it does not trench upon the rights of ownership to such an extent as necessarily to require compensation.

It may be that a by-law absolutely prohibiting blasting would be invalid in some towns in this commonwealth. It may be that in order to determine the question, we should have to take into account facts touching the mode in which the particular town was occupied, and the nature of its industries, whether we listened to evidence of such facts or noticed them judicially. Com. v. Worcester, 3 Pick. 461, 473; Austin v. Murray, 16 Pick. 121,...