Rogers v. Elliott

• Decision Date: 02 March 1888
• Citation: 15 N.E. 768,146 Mass. 349
• Parties: ROGERS v. ELLIOTT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

146 Mass. 349

15 N.E. 768

ROGERS v. ELLIOTT.

Supreme Judicial Court of Massachusetts, Barnstable.

March 2, 1888

COUNSEL

H.M. Knowlton, for plaintiff.

This is an action of trespass on the case. To maintain it the plaintiff relies upon the following propositions: (a) The bell was under the control of the defendant. (b) In consequence of its proximity to the plaintiff, its loud sharp sound, and his physical condition, the ringing of it greatly damaged him. (c) The defendant knew it was liable to damage the plaintiff, and yet caused it to be rung. (d) The ringing of the bell was not necessary to the reasonable and full use by the defendant of his property; it was only a convenience to the worshippers, that might have been dispensed with, without serious damage to any one. (e) The ringing of the bell, therefore, under the circumstances being unnecessary, was unreasonable, wanton, injurious, and is a tort for which action will lie. "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." Sawyer v Davis, 136 Mass. 239, 247; Wesson v. Washburn Co., 13 Allen, 95, and cases cited. But it is apparent that the expression in the rule above quoted, "annoyance to a person of ordinary sensibility to sound," is to be taken with reference to all the circumstances of each particular case. The significance of the rule lies in the relation which the circumstances of the noise bear to the circumstances of the sensibility affected. Noises are sometimes necessary. Then no amount of noise would be a nuisance. On the other hand, the sensibilities of ordinary persons are sometimes necessarily acute; then noises otherwise lawful become a nuisance. It falls to the lot of all to be ill; and the ordinary sensibilities of a sick man are very acute, but they are as much entitled to be regarded as the ordinary sensibilities of a well man. The defendant's contention that he is only bound to consider the sensibilities of well persons, is wholly unreasonable. The defendant is entitled to the credit of the courage of his convictions, for he testified on cross-examination that he would have ordered the bell rung if it killed the man by doing it. This question of the due relation between the noise and the sensibility, under the circumstances, is for the jury, under proper instruction from the court. The plaintiff does not rely upon any evidence of express malice on the part of the defendant. But he claims that under all the circumstances of the case the law would imply malice on his part.

J.J. McDonough, for defendant.

To maintain his action plaintiff must prove that the ringing of the defendant's bell was a nuisance; but from all the evidence in the case he has failed to do this, because, when a person exercises a common right, without negligence or malice, to render such action a nuisance, and therefore to hold the defendant liable, it must be such an act in itself as to be a nuisance to all or to a majority of the persons living in the neighborhood, and not simply, by exceptional circumstances, to one person. See Massachusetts Bill of Rights, arts. 2, 11. The law does not undertake to compel men to perform towards one another offices of mere charity. A reasonable use of a right is not a nuisance, though it be the annoyance of another. 1 Com.Dig. 429; Wood, Nuis. 16. Liability cannot be attached to the bare exercise of a legal right, if the party injuring confine himself strictly to such exercise, and if the hurt done could not be avoided except by abandoning the right. Whart.Neg. (2d Ed.) 782; Amer. & Eng.Ency. of Law, 179, and cases there cited. The real test as to whether a noise is a nuisance in a particular locality, and to a particular person in the enjoyment of his property and health, is whether it is of such a character as would be likely to be physically annoying to a person of ordinary sensibility to sound, or whether the noise was made at such unreasonable hours as to disturb the repose of persons dwelling within its sphere. But neither of these conditions is found in the present case. Wood.Nuis. 586; Bigelow, Lead.Cas. Torts, 470, and cases there cited; Davidson v. Isham, 9 N.J.Eq. 186; Fay v. Whitman, 100 Mass. 76; Davis v. Sawyer, 133 Mass. 289. The present case differs materially from Soltau v. De Held, 9 Eng.Law & Eq. 104, and from Harrison v. St. Marks Church, 3 Wkly. Notes Cas. 384, and from Davis v. Sawyer, 133 Mass. 289.

OPINION

KNOWLTON J.

The defendant was the custodian and authorized manager of property of the Roman Catholic church used for religious worship. The acts for which the plaintiff seeks to hold him responsible were done in the use of this property, and the sole question before us is whether or not that use was unlawful. The plaintiff's case rests upon the proposition that the ringing of the bell was a nuisance. The consideration of this proposition involves an inquiry into what the defendant could properly do in the use of the real estate which he had in charge, and what was the standard by which his rights were to be measured. It appears that the church was built upon a public street, in a thickly-settled part of the town; and if the ringing of the bell on Sundays had materially affected the health or comfort of all in the vicinity, whether residing or passing there, this use of the property would have been a public nuisance, for which there would have been a remedy by indictment. Individual suffering from it in their persons or their property could have recovered damages for a private nuisance. Wesson v. Iron Co., 13 Allen, 95. In an action of this kind, a fundamental question is, by what standard, as against the interests of a neighbor, is one's right to use his real estate to be measured. In densely populated communities, the use of property in many ways which are legitimate and proper necessarily affects in...