Cremidas v. Fenton
| Citation | 111 N.E. 855,223 Mass. 249 |
| Parties | CREMIDAS v. FENTON et al. |
| Decision Date | 03 March 1916 |
| Court | United States State Supreme Judicial Court of Massachusetts |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Essex County.
Suit by George Cremidas against Nathaniel W. Fenton and others. Decree for defendants, and plaintiff excepts. Exceptions overruled, and decree modified and affirmed.
F. E. Marble, of Lynn, for plaintiff.
N. D. A. Clarke, of Lynn, for respondents.
The master not having been ordered to report the evidence his findings of fact are final. Taber v. Breck, 192 Mass. 355, 78 N. E. 472. But as he finds ‘that the defendants are committing no nuisance in the operation of the machinery in their factory and the plaintiff is not entitled to the relief sought’ the plaintiff excepts on the ground that this result is not sustained by the facts reported. It appears that the neighborhood where the plaintiff's house and the defendants' factory are located is grouped around the edge of what was formerly known as ‘bog meadow’ covering many acres. The section is not wholly residential, but of a mixed character consisting of factories, stores and residences, one of which the plaintiff owns and occupies as a dwelling house. It is found that he and his wife have been affected in some degree by not only the noise, but the vibration of the house caused by the defendants. But the operation of the factory being lawful, and the master upon all the facts reported being convinced that the noise would not be unbearable or injurious to the health of a normal person, no substantial injury warranting the assessment of damages or the issuance of an injunction closing the factory on this ground is shown. Wade v. Miller, 188 Mass. 6, 73 N. E. 849,69 L. R. A. 820, and cases cited; Stevens v. Rockport Granite Co., 216 Mass. 486, 104 N. E. 371, Ann. Cas. 1915B, 1054. It is, however, urged, that he is entitled to telief for the annoyance and physical effect upon himself and wife and to damages for injury to his property arising from the vibration and jarring of the house in so far as attributable to the defendants' acts. While the fact found by the master, that the passing of heavy wagons or trucks in the street caused the house to oscillate would be no justification for the defendants, because the public have a right to use the streets, and abutters must suffer the annoyance of passing vehicles, yet he also found that the age and unsubstantial construction of the house are such ‘that it would shake or jar...
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