Murtha v. Lovewell
| Decision Date | 16 June 1896 |
| Citation | 44 N.E. 347,166 Mass. 391 |
| Parties | MURTHA v. LOVEWELL et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
P.J. Doherty, James E. Young, and Arthur E. Burr for plaintiff.
L.S Dabney and Arthur A. Folsom, for defendants.
The defendants do not now contend that their furnace for melting iron was not properly found by the justice of this court who heard the case to be a nuisance at common law, but they seek to justify their acts on the ground of certain so-called "licenses," issued by the mayor and aldermen of Chelsea, under Pub.St. c. 102, §§ 40-48. The first of these appears to be merely a street permit to use a portion of the street in front of the premises for the deposit of building materials. On March 5, 1895, a license to erect a furnace for melting iron was granted to the defendants, with the provision that they build a stack 25 feet in height above the roof of the building, with a suitable spark arrester placed upon the top thereof. Due notice was given of the application for such a license, in accordance with section 41 of chapter 102 of the Public Statutes. A copy of this order was served upon the defendants, but, through some mistake, the height of the stack above the roof was stated to be 20 feet, instead of 25 feet. Thereupon the defendants proceeded to erect their stack only 20 feet high above the roof. Subsequently, this mistake was discovered, and the defendants filed a petition that the board of aldermen should revise the order by striking out the word "five" after the word "twenty"; and on May 4, 1895, the former action of the board was rescinded, and a new license was issued, to maintain a steam engine and boiler, also to melt iron, etc., on condition that the chimney on said building be 20 feet high, and capped with a suitable spark arrester. No notice, however, was given to any one on this petition.
We are of opinion that the defendants show no ground of defense. They did not comply with the license of March 5, 1895 although perhaps through no fault of theirs; and the license of May 14, 1895, cannot avail them, because no notice was given, as provided in section 41, above referred to. If the case stopped here, the plaintiff would be entitled to an injunction to restrain the defendants from continuing the nuisance, and to the damages which had been assessed for the injury already done to the plaintiff's premises. But it was stated by counsel on both sides at the argument that since the case was reported to this court, the defendants had obtained a license, in proper form, after due notice, to continue their business; and we have been requested to consider the question whether, under the sections above referred to, a license is any defense to this bill in equity for a private nuisance. If it is a defense, it is obvious that an injunction should not be granted; and the plaintiff will be entitled only to the damages which he has sustained, and which, by agreement of parties made at the argument, is to be the sum found by the justice who heard the case. We are of opinion that it is well settled in this commonwealth that, under statutes similar to the one before us, where a license is granted by a local board, and the licensees are complying with the license, what they do cannot be considered as a nuisance or be restrained by this court. In Com. v. Parks, 155 Mass. 531, 30 N.E. 174, it is said by Mr. Justice Holmes: "It is settled that, within constitutional limits not exactly determined, the legislature may change the common law as to nuisances, and may move the line either way, so as to make things nuisances which were not so, or to make things lawful which were nuisances, although, by so doing, it affects the use or value of property." Under St.1845, c. 197, § 1, which is similar in its language to Pub.St. c. 102, § 40, it was said in Call v. Allen, 1 Allen, 137, 142, 143, that, the...
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