Loosian v. Goudreault

• Decision Date: 08 January 1957
• Citation: 139 N.E.2d 403,335 Mass. 253
• Parties: Archie LOOSIAN and another v. Edward P. GOUDREAULT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 403

139 N.E.2d 403

335 Mass. 253

Archie LOOSIAN and another v. Edward P. GOUDREAULT.

Supreme Judicial Court of Massachusetts, Essex.

Argued Dec. 6, 1956.

Decided Jan. 8, 1957.

Frederick H. Magison, Haverhill, for plaintiffs.

John M. Hogan, Boston, for defendant.

Before WILKINS, C. J., and RONAN, WILLIAMS, COUNIHAN and CUTTER, JJ.

RONAN, Justice.

This is an appeal from a final decree restraining the defendant from permitting oil trucks delivering oil to his premises to stand on Hilldale Avenue in front of the plaintiffs' premises.

The defendant was the owner of the triangular parcel of land bounded on the northwest by Bennington Street, on the south by Hilldale Avenue, and on the east by premises owned and used as their residence by the plaintiffs. The lots of both parties extend from Hilldale Avenue to Bennington Street. A store is located at the corner of Bennington Street and Hilldale Avenue while at the opposite or easterly end of the lot is a garage with underground tanks.

The defendant has for eighteen years dealt in fuel and range oil and stores forty thousand gallons of oil in underground tanks located by his easterly boundary which runs only ten feet away from the plaintiffs' dwelling. The defendant has a license to store sixty thousand gallons. The oil is delivered to these underground tanks by trailer-truck oil tanks owned and operated by an independent contractor. The overall length of those trailer trucks is from thirty-eight to forty feet. The trucks are driven up to the northerly or left hand side of Hilldale Avenue with the middle line of the vehicle about opposite the boundary line of the lands owned by the parties. This brings the front of the truck which is facing east only about eight feet west of the walk which leads from the front of the plaintiffs' house to the street. It takes from thirty-five to forty-five minutes to empty a truck. Deliveries are usually made before six o'clock in the afternoon. During the years 1954 and 1955 up to December 7, 1955, over six hundred tanks full of oil were delivered. The trucks could be emptied upon the defendant's premises in the space to the east of the store located on the apex of the triangular parcel of land, but that method would not be so convenient for the defendant and besides, to drain the trailer tank in that place, it would take longer to empty if its rear is higher than its front. At times oil dripping from the hose from the truck caused a circular spot about two feet in diameter which was located on the sidewalk near the boundary line.

The master found that in the warmer weather the odor of oil annoys the plaintiffs, and he also found that oily odors came from the discharging of the trucks, the storage of the oil, and the operation of the pumps, but he was not able to find what proportion comes from each source. At times in hot weather the odor of oil makes it necessary for the plaintiffs to close the windows on the westerly side of their house. The master further found, unless as matter of law the acts of the defendant were unreasonable and improper, that such did not constitute a nuisance. Whether a nuisance existed was a question of fact, Stevens v. Rockport Granite Co., 216 Mass. 486, 104 N.E. 371; Godard v. Babson-Dow Mfg. Co., 313 Mass. 280, 285, 47 N.E.2d 303, 145 A.L.R. 603; and the court is empowered to draw inferences of fact from the findings of the master, and reach a different conclusion if satisfied he was plainly wrong. The judge properly found he was.

The suit was tried upon the theory that Hilldale Avenue was a public highway and that the ownership of the parties extended to the center of the way. Rice v. County of Worcester, 11 Gray, Mass., 283; City of Boston v. Richardson, 13...