Hub Theatres, Inc. v. Massachusetts Port Authority

• Decision Date: 16 April 1976
• Citation: 346 N.E.2d 371,370 Mass. 153
• Parties: HUB THEATRES, INC., et al. 1 v. MASSACHUSETTS PORT AUTHORITY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 371

346 N.E.2d 371

370 Mass. 153

HUB THEATRES, INC., et al. ¹

v. MASSACHUSETTS PORT AUTHORITY.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 8, 1975.

Decided April 16, 1976.

Bart J. Vinik, Natick (Louis Winer, Boston, with him), for plaintiffs.

George C. Caner, Jr., Boston (John Silas Hopkins, III, Boston, with him), for defendant.

Before REARDON, QUIRICO, BRAUCHER and WILKINS, JJ.

QUIRICO, Justice.

This action in tort was commenced in the Superior Court against the Massachusetts Port Authority (Authority) for damages allegedly arising out of a nuisance created by the Authority in its operation, maintenance and control of General Edward Lawrence Logan International Airport (Logan). The plaintiffs are Aspen Realty, Inc. (Aspen), Hub Theatres, Inc. (Hub) and Suffolk Concessions, Inc. (Suffolk). The case is before us on the plaintiffs' appeal from the judgment entered after the allowance of the Authority's motion to dismiss. ² See Mass.R.Civ.P. 12(b), 365 Mass. --- (1974). We affirm.

For purposes of this motion to dismiss, we take all of the allegations of fact contained in the plaintiffs' complaint to be true. Jones v. Brockton Pub. Mkts. Inc., --- Mass. ---, 340 N.E.2d 484 (1975). ^a We summarize those allegations. In 1955, Aspen constructed a drive-in theatre on land which it owned in the East Boston district of Boston. At the time of its construction the theatre was located approximately 2,500 feet away from Logan. Aspen leased the land and the theatre thereon to Hub which undertook to operate the theatre. Hub in turn subleased the food concession in the theatre to Suffolk.

In 1959, the Authority assumed responsibility for the operation, maintenance and control of Logan and began to expand the operations of the airport. It is alleged that as a result of this expansion many airplanes were caused to fly over the theatre at very low heights and to emit such fumes and noise and set up such vibrations as to create a total interference with the plaintiffs' theatre operations. For these reasons the plaintiffs allege that they were forced to discontinue their operations on October 1, 1972.

The Authority moved to dismiss the plaintiffs' complaint on the grounds (1) that the complaint 'does not set forth substantive facts constituting a cause of action'; (2) that the complaint 'is insufficient in law'; and (3) that 'Chapter 465 of the Act of 1956 . . . precludes recovery by the plaintiffs in this action of tort.' For the reasons which follow, we agree with the action taken by the Superior Court judge in allowing the Authority's motion to dismiss based on the third ground set forth in support thereof.

Statute 1956, c. 465, provides in part in § 2 thereof: 'There is hereby created . . . a body politic and corporate to be known as the Massachusetts Port Authority . . .. The Authority is hereby constituted a public instrumentality and the exercise by the Authority of the powers conferred by this act shall be deemed and held to be the performance of an essential governmental function.' Under § 5, the Authority is vested with title to, and the control, operation and maintenance of certain airport properties, including Logan (§ 1(b)), and it further is authorized and empowered '(t)o extend, enlarge, improve, . . . maintain, . . . and operate the projects under its control . . .' (§ 3(g)).

The operation and extension or enlargement of Logan by the Authority, the very activity of which the plaintiffs complain, being expressly suthorized by the Legislature, the plaintiffs' action predicated on a nuisance theory must fail. It is a principle of long standing in the law of the Commonwealth that 'when the Legislature directs or allows that to be done which would otherwise be a nuisance, it will be valid, upon the ground that the Legislature is ordinarily the proper judge of what the public good requires, unless carried to such an extent that it can fairly be said to be an unwholesome and unreasonable law.' Sawyer v. Davis, 136 Mass. 239, 241--242 (1884), and cases cited. Saltonstall v. New York Cent. R.R., 237 Mass. 391, 393--399, 130 N.E. 185 (1921). See Szapski v. Sun Oil Co., 303 Mass. 186, 21 N.E.2d 230 (1939); Strachan v. Beacon Oil Co., 251 Mass. 479, 487, 146 N.E. 787 (1925). In Smith v. New England Aircraft Co., 270 Mass. 511, 523, 170 N.E. 385, 390 (1930), involving claims of trespass and nuisance arising out of the operation of an airport, we said: 'There are numerous analogies where the invasion of the airspace over underlying land by noise, smoke, vibration, dust and disagreeable odors, having been authorized by the legislative department of government and not being in effect a condemnation of the property although in some measure depreciating its market value, must be borne by the landowner without compensation or remedy. Legislative sanction makes that lawful which otherwise might be a nuisance' (emphasis supplied).

The manner in which a business or activity which has been legislatively sanctioned may be conducted, however, is not without limitations. Rather, it is 'subject always to the qualification that the business must be carried on without negligence or unnecessary disturbance of the rights of others.' Sawyer v. Davis, supra at 242. The plaintiffs have not alleged...