Ferriter v. Herlihy
| Decision Date | 26 June 1934 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | THOMAS P. FERRITER & another v. JAMES HERLIHY. |
April 6, 1933.
Present: RUGG, C.
J., CROSBY, PIERCE FIELD, & DONAHUE, JJ.
Nuisance. Equity Pleading and Practice, Decree.
License. Milk.
In a suit in equity, it appeared that the defendant, who had from municipal authorities a license to do business as a milk dealer and a license to pasteurize milk in a plant in the basement of his dwelling, which was in a neighborhood exclusively residential except for his business, and permits from the building commissioner to build additions to his milk room, to erect a steam boiler for dairy purposes and for the installation of an oil burner, so conducted his business that each day between 7:30 and 10:30 A.M. he created a nuisance due to unreasonable noise in loading and unloading cans of milk, and also a nuisance due to noise at periods between midnight and 6 A.M. in loading and unloading crates of glass bottles of milk; that a degree of care might reasonable be used as to the cans which would very materially reduce the amount of noise; but, as to the crates of bottles, it did not appear that the use of greater care would so reduce the volume of noise as entirely to prevent interference with reasonable enjoyment of life by the plaintiff and with his health. No other terms or conditions of the licenses given to the defendant appeared, nor was there in the record before this court basis for a finding that such operations by the defendant were reasonably necessary or incidental to the conduct of the business licensed. A final decree was entered enjoining the defendant, "his agents, servants employees and persons bringing dairy products" from loading crates or cases of glass bottles or milk containers on trucks on his premises between the hours of 9 P.M. and 7:30 A.M.; and from loading or unloading trucks with milk containers, cases or crates between the hours of 7:30 A.M and 9 P.M. "in such manner as to constitute a nuisance"; and awarding damages. On appeal by the defendant, it was held, that (1) That portion of the decree which had to do with the loading and unloading of milk containers between the hours of 7:30 A.M. and 9 P.M. was proper since by its terms it went no further than to forbid the carrying on of those operations "in such a manner as to constitute a nuisance";
(2) That part of the decree which prohibited any loading of trucks with milk containers on the defendant's premises between the hours of 9 P.M. and 7:30 A.M. was no more than a reasonable restriction of the defendant's conduct of his business, and was warranted in the circumstances; (3) A contention by the defendant that, because licenses had been issued to him to carry on a retail milk business in his basement, he could be restrained only from negligence in the creation of a nuisance was without merit: the sanction which the General Court gives by authorizing local officials to issue a license to conduct a certain business on specified premises is subject not only to the limitation that the business must be carried on without negligence, but to the further qualification that it must be conducted without unnecessary disturbance of the rights of others; (4) The decree was no broader than was necessary to protect the plaintiff's rights, and it was affirmed.
BILL IN EQUITY, filed in the Superior Court on April 29, 1932. The suit was referred to a master. Material facts found by him are stated in the opinion. By order of Whiting, J., there were entered an interlocutory decree overruling exceptions by the plaintiff to the master's report, and confirming the report, and the final decree quoted in the opinion. The defendant appealed.
J. L. Gray, for the defendant. J. E. Kerigan, for the plaintiffs.
The plaintiffs and the defendant own adjoining parcels of real estate in the city of Westfield. The plaintiffs with their children have their home in the single house on their land. The defendant lives on the first floor of his house and lets the upper story. He conducts in the basement of his house which is about twenty-five feet distant from the plaintiffs' dwelling, a retail milk business in which he now employs eight men and three automobile trucks. When he began business there in 1923 he sold about thirty quarts of milk a day. At the time of the trial he delivered to his customers approximately eleven hundred quarts daily. The establishment in the basement consists of rooms used for washing milk cans and bottles, a room for pasteurizing milk and a cold storage room.
Several grounds for relief stated in the plaintiffs' bill have become of no consequence because of adverse findings of fact by the master. In two respects he found facts which constitute nuisances at common law. Throughout the year, between the hours of 7:30 and 10:30 A.M. daily, milk is brought to the defendant's premises in large cans by his trucks and four trucks of milk producers; the cans are unloaded on a dirt driveway and cement walk on the defendant's premises and empty cans are then loaded on the trucks and taken away. The time taken daily in these operations is approximately an hour and a half. They cause considerable noise the extent of which is somewhat dependent upon whether the filled cans are unloaded on, and the empty cans reloaded from, the dirt driveway or the cement walk. The cans are frequently dropped upon and rolled or dragged along the walk. The master appointed in the bill in equity brought by the plaintiffs found that noise of such frequency, character, intensity and duration was thus caused as materially to offend the sensibilities of a person in ordinary condition of health in the situation of the plaintiffs and materially to interfere with the enjoyment of their home and its surroundings. He further found that a degree of care might reasonably be used in unloading and loading the cans upon the trucks which would very materially reduce the volume of such noise, and that, in so far as it was a question of fact, the conduct of the defendant constituted a nuisance.
The milk is delivered to the defendant's customers in glass bottles. These are placed in wooden crates or cases, brought from the basement and placed on the cement walk. A crate with bottles filled with milk weighs about...
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