Saperstein v. City of Everett

• Decision Date: 28 November 1928
• Parties: SAPERSTEIN v. CITY OF EVERETT. CONRAD et al. v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

265 Mass. 195

163 N.E. 757

SAPERSTEIN

v.CITY OF EVERETT.

CONRAD et al.

v.SAME.

Supreme Judicial Court of Massachusetts, Middlesex.

Nov. 28, 1928.

Report from Superior Court, Middlesex County.

Actions by Isy Saperstein against the City of Everett, and by J. Walter Conrad and others against same defendant. Verdict for defendant. On report. Judgment in each case to be entered on verdict for defendant.

J. A. Post, of Boston, for plaintiffs.

H. H. Newton, of Boston, for defendant.

RUGG, C. J.

The plaintiffs by these actions of tort seek to recover from the defendant city damages caused to their property by fire communicated from burning papers blown from a dump. The material facts are not in dispute. The land used as a dump was near the property of the plaintiffs. It was and had been owned for many years by one O'Riorden, and, after his death, by his heirs. It was a considerable tract of marsh land. Before 1910 and continuously since then the defendant by permission of the owners had used this tract for dumping rubbish, including ashes and papers, which the city collected free of charge from the various homes within its borders. Appropriations for this collection and disposition of refuse had been made for many years by the city council. The collection and dumping of it were made by teams belonging to the city and used in its street department, and the work was done by that department. There was no contract in writing between any representative of the city and the owners of the land as to its use for a dump. No record was shown as to any arrangement for its use. The most that can be said is that such use as was made was by permission of the owners. No compensation was paid by the city to the owners. There was evidence tending to show that in the main the dumping was conducted so that the marsh land should be filled to an even level where refuse was dumped. There was no vote of the city council of the defendant touching the use of this land, and the care and disposition of refuse after it was dumped. Several other dumps were used for the disposal of refuse thus collected by the street department of the defendant. At some time officers of the city put a sign on the land and barred access to it except when actually using it. Others that the city used this land for a dump, depositing there papers and other refuse, and it was the resort of junk dealers and children. There was no particular place on the land where refuse collected by the city was dumped as distinguished from the place where others deposited refuse. The auditor found that for aught that appeared from the evidence the fire which destroyed the buildings of the plaintiffs may have been kindled in papers dumped by parties other than the city.

The dump as maintained might have been found to be a nuisance in respect to the large amount of loose paper blowing about, the inflammable materials deposited there, the menace from frequent fires burning thereon, the exposure of the land to wind, and that damages came to the plaintiffs from this nuisance. The charter of the defendant provided that there should be a street commissioner who should have the powers of a surveyor of highways, but that the city council might confer such powers upon a board of public works. Pursuant to that authority an ordinance was enacted creating a board of public works and conferring upon it, among other powers, those of the street commissioner, and requiring the board to appoint a street commissioner.

Evidence was offered to the effect that from time to time oral arrangements had been made as to the use of the O'Riorden land for a...