Gosselin v. Town of Northbridge

• Decision Date: 04 January 1937
• Citation: 5 N.E.2d 573,296 Mass. 351
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: MARY L. GOSSELIN, executrix, & another v. TOWN OF NORTHBRIDGE.

296 Mass. 351

5 N.E.2d 573

MARY L. GOSSELIN, executrix, & another v. TOWN OF NORTHBRIDGE.

Supreme Judicial Court of Massachusetts, Worcester.

January 4, 1937

September 21, 1936.

Present: RUGG, C.

J., CROSBY, FIELD DONAHUE, & LUMMUS, JJ.

Municipal Corporations, Liability for tort, Maintenance of nuisance Public dump, Officers and agents. Nuisance. Actionable Tort. Public Officer.

A town was not liable for a nuisance resulting from acts done in the use of a public dump, not operated by the town for profit, where it appeared that the dump was located on private property under oral arrangements made by the board of health without a vote by the town and that the owner was paid, upon approval by the board, from a general appropriation, certain sums per year for the use of the land and for taking care of the dump.

TORT, originally by Samuel Gosselin and Cleophas Paquette and, after Gosselin's death, prosecuted by the executrix of his will and Paquette. Writ in the Superior Court dated January 31 1929.

Judgment for the plaintiffs in the sum of $350 was ordered by Broadhurst, J. The defendant appealed.

T. J. Barry, for the defendant. F. W. Morrison, for the plaintiffs.

LUMMUS, J. In this action of tort for nuisance, the judge, upon the report of an auditor whose findings of fact were to be final, ordered judgment for the plaintiffs in the amount of damages reported by the auditor. An appeal by the defendant properly brings the case here. Kamberg v. Springfield National Bank, 293 Mass. 24 , 25.

About a hundred yards away from the house owned by the plaintiffs in Northbridge is a parcel of land used as a dump. Decaying animal matter, imperfectly burned, at times has produced a stench and smoke constituting a nuisance to the plaintiffs, although there has been no negligence in the management of the dump.

In 1923, the board of health of the defendant town, without any vote at town meeting, orally arranged with the owner of the parcel in question that it should be used as a dump. The owner was to receive $50 a year for the use of the land and $300 a year for taking care of the dump. These amounts, upon the recommendation of the board of health, were included without specification in a general appropriation called the contingent fund, and paid by the town treasurer upon approval by the board of health and the selectmen. This has continued from 1923 until the present time. The town received no financial benefit from the dump, but has used it for the deposit of its own rubbish, including trimmings from trees along its highways. The public has used the dump freely subject to some control by the board of health.

It is true, as contended by the plaintiffs, that a town, like other landowners, is liable for a nuisance which it creates or permits on its property. Nichols v. Boston, 98 Mass. 39 . Miles v. Worcester, 154 Mass. 511 . Johnson v. Somerville, 195 Mass. 370 , 376. Jones v. Great Barrington, 273 Mass. 483.

It is equally true that a town may undertake, by its board of health, to provide...