Hersey v. Chapin

• Decision Date: 18 October 1894
• Citation: 38 N.E. 442,162 Mass. 176
• Parties: HERSEY v. CHAPIN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

162 Mass. 176

38 N.E. 442

HERSEY v. CHAPIN et al.

Supreme Judicial Court of Massachusetts, Hampden.

October 18, 1894

COUNSEL

E.H. Lathrop, for plaintiff.

Charles L. Long, for defendants.

OPINION

KNOWLTON J.

In this case the jury found specially from evidence, a part of which is not reported, that the defendants, acting as a board of health, established and used the plaintiff's premises as a hospital. This they could not lawfully do without the consent of the owner, except under a warrant issued in accordance with the provisions of Pub.St. c. 80, § 43. The finding of the jury, therefore, establishes, for the purposes of this case, the proposition that the defendants acted without lawful authority, and that they are therefore liable to any person who suffered damage in his property from their unlawful act. Spring v. Hyde Park, 137 Mass. 554; Brown v. Murdock, 140 Mass, 317, 3 N.E. 208. The plaintiff was not in possession and had no right of possession of the property used, and he cannot maintain an action of trespass quare clausum fregit. Bascom v Dempsey, 143 Mass. 409, 9 N.E. 744; Gooding v Shea, 103 Mass. 360; Woodman v. Francis, 14 Allen, 198. But the declaration contains counts in case for an injury to the reversion, and the question is whether there was evidence to warrant the finding that there was such an injury. The tenants in possession were only tenants at will, and the plaintiff, as owner could terminate their respective tenancies at short notice. If he wished to do so, the fact that the premises had been used as a hospital for patients sick with smallpox might naturally diminish their rentable value. In that way the plaintiff's right may have been affected to his detriment. It appears that one of the tenements became vacant a few months after the guard was removed from the house, and there was evidence that applicants for the tenement objected to hiring it on learning that smallpox had been in the building. The jury might well find that the plaintiff suffered damage in this way. The tenant at will in possession could not, as against the rights of the owner, authorize the defendants to establish a hospital for patients afflicted with an infectious disease in the plaintiff's house, and to maintain such a hospital there to the damage of the reversion. An attempt to do that would have been a violation of the owner's right which would have justified him in treating the tenant as a...