Durgin v. Minot

• Decision Date: 23 June 1909
• Citation: 89 N.E. 144,203 Mass. 26
• Parties: DURGIN et al. v. MINOT et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

203 Mass. 26

89 N.E. 144

DURGIN et al. v. MINOT et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 23, 1909

COUNSEL

Geo A. Flynn, for plaintiff.

Chas A. Williams, for respondents Hatfield and others.

OPINION

BRALEY J.

It is not improbable that by the accumulation of stagnant water, or of filth on the surface of the roadbed of a private way which is extensively used, it may become so offensive as to be dangerous to the health of the community. But if this condition is found by the authorities to constitute a nuisance, the board of health under Rev. Laws, c. 75, §§ 65 67, has been delegated ample power to order it abated, although they need not direct the mode of abatement. If the mode is prescribed, the landowner or occupant after notice, need not follow it, but may do away with the cause of complaint in any feasible and effectual manner. Belmont v. New England Brick Co., 190 Mass. 442, 445, 77 N.E. 504, and cases cited. Yet when the order is not complied with, the board under section 69 can cause the nuisance to be removed at the expense of those who are found to be responsible for its existence or continuance. Salem v. Eastern Railroad Co., 98 Mass. 431, 96 Am. Dec. 650. Plainly, so long as the way described in the bill was not detrimental to the public health, no restraint or regulation as to its use or maintenance was necessary, and if a noxious condition calling for action by the public authorities existed a remedy had been provided. It may be said that if there were various owners upon whose lands collectively and from the same source a nuisance existed, they could not be joined in one order, but each should be ordered to abate the nuisance on his own land. But, if so, the remedy would be no less effective, as the form of procedure could be adapted to reach them either jointly or severally. Cambridge v. Munroe, 126 Mass. 496, 502. It was while similar provisions found in Pub. St. 1882, c. 80, §§ 16, 21, 23, were in force that St. 1894, p. 92, c. 119, was enacted. By section 1, 'whenever the board of health of the city of Boston shall adjudge that the public health requires and shall order that the surface of any private passageway in said city shall be paved or otherwise provided with a road bed, the owners of said private passageway shall forthwith pave or lay said road bed in accordance with said order, and in a manner and with materials satisfactory to said board,' and by section 3, 'any justice of any court having jurisdiction in equity may, on the petition of the board of health of said city, enforce the provisions of this act by any proper process or decree.' The demurrants, who have been ordered to pave a passageway connected with their estate with materials satisfactory to the plaintiffs, contend that the statute is unconstitutional. In the exercise of the police power upon which the statute rests, while in the first instance the Legislature as a co-ordinate branch of the government must determine whether a proposed law is within the Constitution, its determination is not final, but is subject to review by the courts. Const. Mass. pt. 2, c. 1, § 1, art. 4; Talbot v. Hudson, 16 Gray, 417. The limits within which such enactments are valid have been often considered, but no general definition has been attempted. See Sawyer v. Davis, 136 Mass. 239, 49 Am. Rep. 27; Train v. Boston Disinfecting Co., 144 Mass. 532, 11 N.E. 929, 59 Am. Rep. 113; Miller v. Horton, 152 Mass. 540, 26 N.E. 100, 10 L. R. A. 116, 23 Am. St. Rep. 850; Taft v. Com., 158 Mass. 526, 527, 33 N.E. 1046; and Com. v. Strauss, 191 Mass. 545, 78 N.E. 136, 11 L. R. A. (N. S.) 968. In Sawyer v. Davis, 136 Mass. 239, 243, 49 Am. Rep. 27, it was said: 'Slight infractions of the natural rights of the individual may be sanctioned by the Legislature under the proper exercise of the police power, with a view to the general good. Grave ones will fall within the constitutional limitation that the Legislature is only authorized to pass reasonable laws. The line of distinction cannot be so laid down as to furnish a rule for the settlement of all cases in advance. The difficulty of marking the boundaries of this legislative power, or prescribing limits to its exercise, was declared in Com. v. Alger, 7 Cush. 53, 85, and is universally recognized.' But if the enjoyment of private property must be held subordinate to such reasonable regulations as are essential to the peace, safety, good order and morals of the community, yet, under the guise of enactments for its protection, lawful property cannot be confiscated. Com. v. Alger, 7 Cush. 53; Com. v. Boston Advertising Co., 188 Mass. 348, 74 N.E. 601, 69 L. R. A. 817, 108 Am. St. Rep. 494; Belmont v. New England Brick Co., 190 Mass. 422, 77 N.E. 504.

The demurrer admits that the private passageway was appurtenant to the defendants' estates, and a part of the freehold, in whose use and enjoyment their rights apparently were exclusive. No reasons are set forth by way of recital to show the specific grounds of the action taken. All that appears is that the board adjudged the public health required the changes. If, because of its general use by the public as a thoroughfare connecting with the highways into which it opened the way had become out of repair and emitted noisome odors, authority could have been delegated to the city council to take a coextensive easement by right of eminent domain, and a street properly constructed and maintained would have removed any source of danger to the public health. Instead the defendants, when the work has been done, have been indirectly compelled, at their own expense, to provide such accommodation upon the ground that the reconstruction merely restrains a harmful use of their premises. The statute is expressed in the broadest terms. It includes not only ways similar to that described in the bill, but any private way which the landowner may construct on his own premises. If, however, the laying out and building of private passageways in any manner the owner sees fit to adopt is not prohibited, yet whenever the board in the performance of its...