Department of Public Health v. Cumberland Cattle Co.

• Decision Date: 16 May 1972
• Citation: 361 Mass. 817,282 N.E.2d 895
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: DEPARTMENT OF PUBLIC HEALTH v. CUMBERLAND CATTLE COMPANY (and three companion cases).

Page 895

282 N.E.2d 895

361 Mass. 817

DEPARTMENT OF PUBLIC HEALTH v. CUMBERLAND CATTLE COMPANY (and three companion cases).

Supreme Judicial Court of Massachusetts, Suffolk and Bristol.

Argued April 4, 1972.

Decided May 16, 1972.

Allan van Gestel, Boston, for Cumberland Cattle Co.

Walter H. Mayo, III, Asst. Atty. Gen., for the Dept. of Public Health.

Jarvis Hunt, Town Counsel, for the Board of Health of North Attleborough and another.

Max Volterra, Attleboro (Henry G. Barrett, City Solicitor, with him), for the City of Attleboro.

Before TAURO, C.J., and CUTTER, SPIEGEL, BRAUCHER, and HENNESSEY, JJ.

CUTTER, Justice.

These four proceedings concern a dairy farm owned by Cumberland Cattle Company (Cumberland) in North Attlebrough (the town). ¹ In each proceeding, Cumberland is before us either by appeal or on a bill of exceptions, attempting to set aside a result adverse to it. Each proceeding is described in later paragraphs. The judge made findings adopted by him as reports of material facts in the equity suits, in which the evidence is reported.

FINDINGS RELATING TO ALL PROCEEDINGS.

Certain findings (or facts appearing in bills of exceptions) relate to all the proceedings. With the exception of a contempt proceeding in the case brought by the Commonwealth's Department of Public Health (the State department), all proceedings were consolidated for trial in the Superior Court and were heard together. In that joint hearing, the judge (sitting without a jury) made supported findings (dated April 29, 1968), upon which (to a great extent) the facts are stated below.

Cumberland operated a dairy farm (the locus) with about 750 head of cattle in the town. On the farm it maintains a house and other structures, a lagoon, an impounded stream, a liquids tank, and a silo. Part of the area owned by Cumberland is used to cultivate crops to feed the cattle. The cattle are confined and are not allowed to graze in the fields.

The locus is within the watershed of Seven Mile River (the river, a term hereinafter used to include a tributary stream which runs through the locus). The river, in turn, is a tributary of Orr's Pond, a source of water supply for the city of Attleboro (the city).

The judge found that Cumberland had committed the following violations of orders of the State department and the town's board of health (the town board) and the provisions of a consent decree, all mentioned in greater detail below.

Cumberland has maintained manure piles on the locus on the river watershed and has not removed the piles promptly or controlled them properly. Top soil in the lagoon was not removed down to the level of subsoil, nor was it replaced with gravel. Cumberland has used fertilizer on the locus between November 1 and April 30 of each year without the approval of the State department. It has not continued to conduct a fly control program. It has allowed barnyard drainage to discharge into the river, which shows an increase in the coliform count as it passes through the locus. It has failed to make manure silos leak proof and to cover the liquids pit. The lagoon (which has contained liquid cow manure, a polluting substance) is within fifty feet of the river high water mark. The contents of the lagoon have overflowed into the river.

CASE NO. I--CUMBERLAND'S 'NOISOME TRADE' APPEAL.

The town board, on October 20, 1965, after a public hearing, 'assigned' the locus 'for the exercise of dairy farming' and declared the operations on the locus to be a noisome trade. G.L. c. 111, § 143 (as amended through St.1956, c. 275, § 1). See fn. 8, infra. The town board issued an order imposing various conditions (two of which ² were later waiver by it). ³

Cumberland seasonably appealed to the Superior Court for Bristol County under G.L. c. 111, § 147 (as amended by St.1948, c. 480, § 2), and asked for a jury trial. The town board filed a motion to dismiss the appeal on the ground that Cumberland continued to violate its order. See G.L. c. 111, § 148, which provides that the allegedly noisome trade 'shall not be exercised contrary to the (town board's) order while such (appeal) proceedings are pending,' with exceptions not here pertinent, and that '(u)pon any violation of the order . . . the proceedings shall forthwith be dismissed.' See also Board of Health of Franklin v. Hass, 342 Mass. 421, 422, 424--426, 173 N.E.2d 808.

After consolidation of this appeal with the other cases, and during a joint hearing, Cumberland's attorney asked a witness on cross-examination about the basis of an order made by the State department in March, 1966 (discussed later in Cumberland's appeal from the State department order). The judge ruled (subject to Cumberland's exception) that, in the consolidated hearing, he would not permit inquiry about the basis and validity of the State department's order (at least in connection with the town board's motion to dismiss Cumberland's appeal from the town board's order). He also ruled that he would hear only the motion to dismiss and would not hear Cumberland's appeal on the merits. He later allowed the town board's motion to dismiss Cumberland's appeal. Cumberland's bill of exceptions raises only exceptions to the judge's limitation of Cumberland's inquiry and to the judge's allowance of the motion to dismiss.

CASE NO. II--THE TOWN BOARD'S EQUITY SUIT AGAINST CUMBERLAND.

On March 30, 1966, the town board (see, however, Board of Health of Franklin v. Hass, 342 Mass. 421, fn. 1, 173 N.E.2d 808) filed a bill in equity in the Superior Court for Bristol County, seeking to restrain Cumberland from continuing violation of the town board's order (see fn. 3, supra), and to prevent pollution of the river and hence of the city's water supply. The city intervened. On April 5, 1966, by preliminary injunction Cumberland was directed to comply with requirements stated in the margin. ⁴ That decree (sometimes referred to as the consent decree) was signed by all counsel then representing the respective parties.

Subsequently, the town board filed a petition for contempt. Cumberland's answer denied the legality of the town board's order, and asserted that G.L. c. 111, § 143, has no application to a dairy farm. In the joint hearing of (a) the contempt proceeding in the town board's suit, (b) the equity suit brought by the State department (see discussion below of case no IV), and (c) the motions to dismiss Cumberland's appeals from the State department's order (case no. III, infra) and the town board's order (case no. I, supra), the judge made findings (already summarized in the statement of facts applicable to all the proceedings). These findings, dated April 29, 1968, showed Cumberland's violation of the consent decree (see fn. 4).

Final decrees were entered on July 1, 1969, ⁵ (a) holding Cumberland in contempt and imposing upon it a fine of $1,000 a day (and counsel fees) for violation (after July 1, 1969) of the town board's order and the consent decree, and (b) renewing the commands of the consent decree. Cumberland appealed.

CASE NO. III--CUMBERLAND'S APPEAL FROM THE STATE BOARD ORDER.

On March 29, 1966, the State department, purporting to act under G.L. c. 111, §§ 159 and 160 (as amended through St.1951, c. 448, §§ 2, 3), ⁶ ordered Cumberland 'to remove forthwith all cattle from its dairy at' the locus and 'to cause all cow manure and putrescible matter . . . to be removed from the (river's) watershed.' Cumberland seasonably appealed to the Superior Court under G.L. c. 111, § 147, as amended, as affected by § 163 (as amended through St.1951, c. 448, § 5). ⁷ After an exchange of correspondence between the State department and former counsel for Cumberland, the State department's order was modified (about May 13, 1966) to conform with the consent decree (fn. 4, supra) of April 5, 1966. The department on June 14, 1967, filed a motion to dismiss Cumberland's appeal.

During the course of the combined trial, the judge, with respect to this Cumberland appeal also, made the same ruling (already mentioned above in the discussion of case no. I, Cumberland's 'noisome trade' appeal). He refused to permit inquiry about the validity and basis of the State department's order. The judge ordered that Cumberland's appeal be dismissed because of its failure to comply with the consent decree, the State department's order, and the State department's regulations. Cumberland's bill of exceptions presents issues raised by the judge's rulings and order.

CASE NO. IV--THE STATE DEPARTMENT'S EQUITY SUIT.

On August 3, 1966, the State department filed in Suffolk County a bill in equity alleging that Cumberland had not complied with the State department's regulations and with its order of March 29, 1966, as modified (see discussion of case no. III, supra). Injunctive relief was asked. A preliminary injunction on August 9, 1966, continued in effect a restraining order by which Cumberland was directed to refrain from violating (a) the order of March 29, 1966, as modified about May 13, 1966 (which embodies the terms of the consent decree, fn. 4, supra), and the department's regulations, and (b) from causing pollution of the city's water supply. This case was heard on the merits as part of the consolidated hearing of the several proceedings. The judge made the same findings, rulings, and order for decree dated April 29, 1968 (already mentioned in connection with the statement of findings applicable to all the proceedings and in the discussion of case no. II).

A petition for contempt was filed on June 14, 1968. The city and the town then were allowed to intervene. Cumberland's motion to stay the petition for contempt was denied on April 11, 1969. On June 28, 1969, the judge (after referring to his findings of April 29, 1968) made further findings on the contempt petition, including that Cumberland (a) with 'full knowledge of . . . the interlocutory decree' of August 9, 1966, 'has wilfully . . . disobeyed' it; (b) 'has polluted the waters...