Quinn v. Lowell Electric Light Co.

• Decision Date: 04 September 1885
• Citation: 140 Mass. 106,3 N.E. 200
• Parties: QUINN v. LOWELL ELECTRIC LIGHT CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

140 Mass. 106

3 N.E. 200

QUINN

v.LOWELL ELECTRIC LIGHT CO.¹

Supreme Judicial Court of Massachusetts.

Filed September 4, 1885.

This was an action of tort for a nuisance. The defendants erected its works on Middle street, Lowell, within 500 feet of the plaintiff's dwelling-house, maintained and used a steam-engine, boilers, and heavy machinery for generating electricity, the noise and vibration from which was a nuisance to the plaintiff. The defendants justified themselves under a license from the mayor and aldermen of Lowell. The case was reported by ROCKWELL, J., to the full court. The remaining material facts appear in the opinion.

W.H. Anderson and C.S. Lilley, for plaintiff.

D.S. & G.F. Richardson, for defendants.

W. ALLEN, J.

The license was under Pub.St. c. 102, § 47, which prohibits the erection of a stationary engine within 500 feet of a dwelling-house or public building, without a license, in any city or town in which chapter 74 of the acts of 1862 had been adopted at a legal meeting of the city council of the city, or of the inhabitants of the town, called for that purpose. The act of 1862, c. 74, was adopted at a regular meeting of the city council, and not at a special meeting called for the purpose. We think that the requirement that the adoption shall be at a meeting called for the purpose is limited to an adoption by the inhabitants of a town, and does not apply to the action of a city council, which is usually composed of different bodies acting at regular meetings and under prescribed rules of procedure. The license was, in this case, “to set up and run a stationary steam-engine, for the purpose of driving machinery used in generating electricity, at their works on Middle street.” The court ruled, in substance, the license extended to the use of the machinery as well as to the use of the engine, and that the plaintiff could not recover on account of noise, jarring, and vibration caused by the machinery, which, but for the license, would give him a right of action for a private nuisance. This ruling involves the proposition that nothing which is licensed under the statute can be a nuisance for which an action will lie, and that the use of the machinery was duly licensed. The second only of these is before us. The language of the license may well be construed as descriptive of the engine only; but if it was intended to license the defendant's works, and the business carried on there, as well as the engine, the license exceeds the authority given by the statute. The provision of the statute under consideration was first enacted in the statutes of 1862, c. 74, which merely prohibits the erection, for use, of an engine in circumstances mentioned, without a license from the municipal authorities, and declares such an unlicensed engine a public nuisance, which can be summarily abated by the authorities. The obvious intention of the statute is to restrict the use of engines by declaring their use without a license a public nuisance. The construction contended for would not only evolve from the provision that every unlicensed engine should be a common nuisance, the enactment that no licensed engine could be a nuisance, but also authority to license and legalize every work in which an engine might be used; giving to municipal authorities absolute authority to determine beforehand, and without trial by jury, and without revision, the lawfulness, as regards private as well as public rights, of any business or operation in which an engine should be used . We cannot infer from a prohibition to use steam-power without a license from the selectmen, a grant of authority to them to license any manufactory or business, in itself a nuisance, in which steam-power may be used. The statute was intended to regulate the use of a dangerous power by forbidding the use of an engine unless specially authorized, and not to regulate other nuisances which an engine might aid in levying. In Saltonstall v. Banker, 8 Gray, 195, it is intimated that an engine may be a nuisance in consequence of its location, construction, or employment, although licensed; but that case is decided on other grounds.

Call v. Allen, 1 Allen, 137, which is relied on by the defendant, comes under St.1845, c. 197, § 2; Pub.St. c. 102, § 42. The statute prohibits the future erection of a steam-engine in a mill for planing, sawing, or turning wood, without a license; it provides, as to an engine in use in such a mill, that if it was adjudged dangerous and a nuisance, an order might be made for such alterations in the building, etc., as might be required for the safety of the neighborhood, and gave to the owner a right of trial by jury. Under this provision an order was made requiring certain alterations in the defendant's building, and prescribing regulations for carrying on the mill. It was decided that the mill, while carried on in accordance with the order, was not a nuisance, and that the plaintiff could not maintain an action for a private nuisance on account of it. All that need be said of the decision is that it has no application to the case at bar. It decided that in a statute specifying engines in use in a particular kind of mill, the power given to the selectmen to make an order prescribing rules, restrictions, and alterations as to the building and the mill, with the right given to the owner to have a revision of the order by a jury, implied a right to the owner to carry on his mill according to the order. This is no authority for the proposition that a statute which makes any engine used without a license a common nuisance authorizes the licensing so that it cannot be a private nuisance. We think the license is no bar to an action for a nuisance to the plaintiff caused by the machinery as distinct from the engine.

Other questions presented in the report are considered in the case of Quinn v. Middlesex Electric Light Co., post, 204.

For the reason stated there must be a new trial.

1 nuisance-noise and vibration.That is a nuisance which disturbs one in the possession of his property, rendering its ordinary use or occupation physically uncomfortable. Baltimore & P.R. Co. v. Fifth Baptist Church, 2 Sup.Ct.Rep. 719;S.C. 108 U.S. 317. And any business, however, lawful in itself, which, as to those residing in the neighborhood where it was carried on, causes annoyances that materially interfere with the ordinary physical comforts of human existence, is a nuisance. Cleveland v. Citizens' Gas-light Co., 20 N.J.Eq. 201. To be actionable, a nuisance must materially affect or impair the comfort or enjoyment of individuals, or the use or value of property. Stadler v. Grieben, 21 N.W.Rep. 629;Pennoyer v. Allen, 14 N.W.Rep. 609;S.C. 56 Wis. 511; Sturges v. Bridgman, 32 Moak, Eng. 837; Baltimore & P.R. Co. v. Fifth Baptist Church, 2 Sup.Ct.Rep. 719;S.C. 108 U.S. 317; Appeal of Pa.L. Co., 96 Pa.St. 116; Fish v. Dodge, 4 Denio, 312. No permission given to conduct such an occupation within the limits of the city would exempt the parties from liability for damages occasioned to others, however carefully they might conduct their business. Fish v. Dodge, 4 Denio, 312. See Baltimore & P.R. Co. v. Fifth Baptist Church, 2 Sup.Ct.Rep. 731.1. NOISE. Noise alone may create a nuisance, and be the subject of injunction. See Roskell v. Whitworth, 19 Wkly.Rep. 804; Bishop v. Banks, 33 Conn. 118; Dargan v. Waddell, 9 Ired. 244;Fish v. Dodge, 4 Denio, 311; Dennis v. Eckhardt, 3 Grant, Cas. 390; Scott v. Firth, 10 Law T. (N.S.) 240; Broder v. Saillard, 2 Ch.Div. 692; Robertson v. Campbell, 13 Fac.Col. 61; Bradley v. Gill, Lutw. 27; Cleveland v. Citizens' Gas-light Co., 20 N.J.Eq. 201; Walter v. Selfe, 4 De Gex & S. 322; Crump v. Lambert, L.R. 3 Eq. 409; Elliotson v. Feetham, 2 Bing. (N.C.) 134; Harrison v. St. Mark's Church, 12 Phila. 259; Wallace v. Auer, 10 Phila. 356; Inchbold v. Robinson, 4 Ch.App. 388; Soltau v. De Held, 2 Sim. (N.S.) 133; Davidson v. Isham, 9 N.J.Eq. 186;Dittman v. Repp, 50 Md. 516; Bisph.Eq. §§ 439, 441; Wood, Nuis. c. 16. If it be of such a character as to produce physical discomfort and annoyance to a person of ordinary sensibilities, it may create a nuisance. Dittman v. Repp, 50 Md. 516; Bradley v. Gill, Lutw. 27; Elliotson v. Feetham, 2 Bing. (N.C.) 134; Soltau v. De Held, 2 Sim. (N.S.) 133; Inchbald v. Barrington, 4 Ch.App. 388; Ball v. Ray, 8 Ch.App. 467; Crump v. Lambert, L.R. 3 Eq. 409; Fish v. Dodge, 4 Denio, 311;Dittman v. Repp, 50 Md. 516. But noise is not ex necessitate a nuisance, even when disagreeable; and it is only when it is of a character so objectionable as fairly to come within the meaning of that significant term that a court of equity will interfere to repress or restrain them, Butterfield v. Klafer, 52 How.Pr. 255; but where unusual, ill-timed, or deafening it is a nuisance. McKeon v. See, 4 Rob. (N.Y.) 449. It has been said that “noise which constitutes an annoyance to a person of ordinary sensibility to sound, such as materially to interfere with the ordinary comfort of life, and impair the reasonable enjoyment of his habitation, is a nuisance to him.” Davis v. Sawyer, 133 Mass. 289;Fay v. Whitman, 100 Mass. 76;Wesson v. Washburn Iron Co., 13 Allen, 95. After all, it is the person disturbed who is to be looked to; his condition, his health, his nervousness, and the like, in determining the question of nuisance from noise. It has been well said that noise, to constitute a nuisance, depends (1) on the quantity and quality of the noise,-that is, on the loudness and on the peculiar character or disagreeableness of the noise itself; and (2) on the manner in which given forth: whether in business, in which case the preponderance of authority seems to be in favor of tolerating a reasonable amount of noise; maliciously, in which case the rule of quantity and quality determining the nuisance is invariable; for amusement, either gratuitously or for the purpose of making money. 15 Alb.Law J. 247. Thus it has been...