Mayor of Cambridge v. Dean
| Decision Date | 08 April 1938 |
| Citation | 300 Mass. 174,14 N.E.2d 163 |
| Parties | MAYOR OF CAMBRIDGE v. LOUIS W. DEAN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
December 7, 1937.
Present: RUGG, C.
J., FIELD, LUMMUS QUA, & COX, JJ.
Equity Pleading and Practice, Taking bill for confessed, Parties. Nuisance. Equity Jurisdiction, To enjoin maintenance of nuisance. Municipal Corporations, Officers and agents. Piggery. Public Health. Water Supply. Cambridge.
An interlocutory decree taking a bill in equity for confessed establishes only facts well pleaded in the bill; it does not justify the entry of a final decree granting relief not warranted by those facts.
The mayor of Cambridge had no standing to maintain a suit in equity to enjoin the operation of a piggery in Lincoln, which was being carried on without the written consent and permission of the board of health of
Lincoln required by G.L. (Ter. Ed.) c. 111, Section 151, even though the piggery resulted in pollution of the water supply of Cambridge.
A suit in equity by the mayor of Cambridge to enjoin the proprietor of a piggery in Lincoln from permitting garbage and other offensive matter to escape into a tributary of Stony Brook, part of the water supply of
Cambridge, could not be maintained under G.L. (Ter. Ed.) c. 111, Section 169 where no violation of Section 167 was shown, nor under Section 164 where no violation of the rules of the State department of public health for the protection of the Cambridge water supply was shown.
BILL IN EQUITY filed in the Superior Court on December 14, 1932. From the denial by Beaudreau, J., of a motion of the defendant for leave to file a demurrer and answer, and from a final decree the defendant appealed.
D. R. Pokross, (E.
G. Fischer with him,) for the defendant.
G. A. McLaughlin, City Solicitor, for the plaintiff.
The defendant maintains a piggery partly in Lincoln and partly in Waltham, adjacent to a tributary of Stony Brook which forms part of the water supply of Cambridge. He has no written consent and permission from the board of health of Lincoln under G.L. (Ter. Ed.) c. 111, Section 151. He has permitted garbage and other offensive matter to accumulate on his land and to escape therefrom into the tributary of Stony Brook and to pollute its waters. The foregoing were in substance the allegations of the bill which was taken for confessed against the defendant early in 1933 because of his failure to appear. Rule 25 of the Superior Court (1932). There the case rested for more than four years. On August 26, 1937, the judge refused to reopen the case, and entered a final decree permanently enjoining the defendant against permitting garbage and other offensive matter to accumulate upon his premises and to escape therefrom and to pollute the waters in question. The defendant appealed.
The interlocutory decree taking the bill for confessed did not ensure a decree for the plaintiff. It only established as true the facts properly pleaded, and required the entry of whatever decree those facts demanded. If the bill failed to state a case calling for relief, it must be dismissed. Russell v. Lathrop, 122 Mass. 300 . Grant v. Pizzano, 264 Mass. 475 . Pofcher v. Fisher, 272 Mass. 78 , 83. For the similar rule at law, see Hemmenway v. Hickes, 4 Pick. 497; Dryden v. Dryden, 9 Pick. 546; Tarbell v. Gray, 4 Gray, 444; Hollis v. Richardson, 13 Gray, 392; Mullaly v. Holden, 123 Mass. 583; Farnum v. Aronson, 253 Mass. 464 , 466; G.L. (Ter. Ed.) c. 250, Section 4; Perkins v. Bangs, 206 Mass. 408 , 416.
As an individual the plaintiff shows no right to maintain a suit for the abatement of a public nuisance, and his right as mayor of a city is no greater unless he shows that some statute has vested him with authority to vindicate the right of the public. "The general principle is that a suit in equity can be maintained only for vindication of rights of property an individual commonly has no property right to obedience by his neighbors to statutes or ordinances." Mullholland v. State Racing Commission, 295 Mass. 286, 290. An information in equity by the Attorney General is the normal remedy for the abatement of a public nuisance. Attorney General v. Boston & Albany Railroad, 246 Mass. 292 , 296. See also Cape Cod Steamship Co. v. Selectmen of Provincetown, 295 Mass. 65 , 69; Tuckerman v. Moynihan, 282 Mass. 562, 568, 569. It is true that where the regulation of the subject matter has been entrusted to the officers of a municipality, the inhabitants of which are peculiarly interested, and the wrongdoing alleged consists of a violation of the rules and orders of those officers, the municipality has been allowed to maintain a suit in its name. Salem v. Eastern Railroad, 98 Mass. 431 , 442. Taunton v. Taylor, 116 Mass. 254, 262, and cases cited. Worcester Board of Health v. Tupper, 210 Mass. 378, 383. Lexington v. Miskell, 260 Mass. 544 , 546. Swansea v. Pivo, 265 Mass. 520, 522. But the mayor is not the city, and the bill does not allege any violation of the municipal regulations of Cambridge or of its officers. The plaintiff as mayor...
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