Sheppard Envelope Co. v. Arcade Malleable Iron Co.

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtBefore WILKINS; COUNIHAN
Citation138 N.E.2d 777,335 Mass. 180
PartiesSHEPPARD ENVELOPE CO. v. ARCADE MALLEABLE IRON CO.
Decision Date12 December 1956

Page 777

138 N.E.2d 777
335 Mass. 180
SHEPPARD ENVELOPE CO.
v.
ARCADE MALLEABLE IRON CO.
Supreme Judicial Court of Massachusetts, Worcester.
Argued Sept. 24, 25, 1956.
Decided Dec. 12, 1956.

[335 Mass. 181]

Page 778

John F. Driscoll, Worcester, for plaintiff.

John P. Dunn, Northboro, for defendant.

Before [335 Mass. 180] WILKINS, C. J., and SPALDING, WILLIAMS, COUNIHAN and WHITTEMORE, JJ.

[335 Mass. 181] COUNIHAN, Justice.

This is a suit in equity in which the plaintiff seeks injunctive relief against the defendant because of circumstances which shall hereinafter appear. Both parties are corporations and own the land upon which their respective plants are located in Worcester in the vicinity of Muskeego, Nebraska, Winona and Albany streets. All of the streets except Albany are public ways.

The plaintiff is engaged in the manufacture of paper envelopes. Its plant is located on the northerly side of Albany Street. The defendant operates two foundries. Foundry numbered 1 is located on the southerly side of Albany Street opposite the plant of the plaintiff. Foundry numbered 2 is located on the northerly side of Albany Street, contiguous

Page 779

to the plaintiff's land on the west. Both parties trace their titles to a common owner.

The bill was filed in December, 1947, and was subsequently amended. So far as material the amended bill alleged that the defendant had erected an open storage shed on the southerly side of the plaintiff's land and prayed for the removal of such structure. By another amendment allowed after the filing of a master's report it alleged that the defendant had erected a stack or cupola upon its premises and was operating this stack or cupola 'in such a manner as to cause cinders and gritty substances to continuously fall upon the adjoining property of the plaintiff thereby causing injury to the plaintiff's property and constituting a [335 Mass. 182] continuous trespass.' It prayed that the defendant be enjoined from operating its stack or cupola in such a manner as to cause cinders and gritty substances to be discharged upon the adjoining property of the plaintiff.

The defendant, in addition to denying generally the allegations of the bill, specifically denied that the plaintiff had any right, title or interest in the areas described in the bill, and further pleaded that, if the plaintiff ever had any such rights, it had lost them by abandonment, prescription or laches.

The suit was referred to a master who filed a careful and comprehensive report. The evidence at the hearings before the master was taken by stenographers approved by him. This evidence is not reported. Attached to the master's report and made part of the record are copies of two plans, one marked exhibit A and the other exhibit B.

The findings of the master material to the issues before us are: 'The Sheppard Envelope Company owns part of the land on which the Arcade Malleable Iron Company has erected storage sheds. The Sheppard Envelope Company is not barred by laches nor is it estopped to seek the aid of a court in equity to require the removal of the portions of the sheds that are on its land,' and 'The smoke, odor and particles reaching Sheppard Envelope Company's land from the operation of Arcade Malleable Iron Company's cupola do not constitute a nuisance but the particles from Arcade Malleable Iron Company's cupola falling on Sheppard Envelope Company's land within a radius of about 30 to 40 feet from the base of the cupola during each day's operation of the cupola constitute continuing trespasses of sufficiently serious character to justify relief by injunction. The erection and operation by Arcade of a cupola in Albany Street without a license under G.L. c. 140, s. 115, does not constitute a public nuisance.' Both parties seasonably filed objections to the master's report which thereafter became exceptions. Rule 90 of the Superior Court (1954).

An interlocutory decree was entered confirming the master's report and thereafter a final decree was entered granting[335 Mass. 183] the plaintiff injunctive relief. The defendant appealed from both decrees. The plaintiff filed no appeal so we do not consider its exceptions to the master's report.

The only issues raised by the defendant's appeals and exceptions relate to the fourth and fifth paragraphs of the final decree, which read: '4. The defendant is hereby ordered, within sixty days from the entry of this decree, to remove the parts of the open storage shed, as shown on plan hereto annexed, which are maintained by the defendant, on the land of the plaintiff; namely, that part of the shed which, at the westerly end, extends 3 1/8 feet on the land of the plaintiff, and that part of the shed which at the easterly end extends 1 8/10 feet on the land of the plaintiff. 5. At the expiration of sixty days from the entry of this decree, the defendant is enjoined from discharging cinders or other particles, in such quantities as to constitute a continuing trespass, upon that part of the property of the plaintiff which is within a radius of about forty feet from the base of the cupola now located on the defendant's premises.'

Page 780

The defendant contends as to the storage shed that the plaintiff did not establish that it was the owner of the land upon which the shed was erected and that, even if it had established that fact, the plaintiff was barred by estoppel or laches. It further contends that the plaintiff was not substantially harmed. As to the stack or cupola the defendant questions the master's finding and the judge's ruling that the operation of the stack or cupola was a continuing trespass. It also asserts that the decree in effect ordering the removal of the cupola would cause damage to it disproportionate to the benefit accruing to the plaintiff. We are of opinion that there was no error.

Without reciting verbatim the findings of the master with respect to the descriptions of the property of the plaintiff and the property of the defendant contiguous to it on the west, we think it enough to say that the subsidiary, findings of the master relative to the description of the defendant's land, and a plan...

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30 practice notes
  • Peters v. Archambault
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 8, 1972
    ...N.E.2d 564. Blood v. Cohen, 330 Mass. 385, 388--389, 113 N.E.2d 448. Sheppard Envelope Co. v. Arcade Malleable [361 Mass. 93] Iron Co., 335 Mass. 180, 187--189, 138 N.E.2d 777. Ottavia v. Savarese, 338 Mass. 330, 336--337, 155 N.E.2d 432. Brink v. Summers, 352 Mass. 786, 227 N.E.2d 476. In ......
  • In re Worldcom, Inc., Bankruptcy No. 02-13533 (AJG).
    • United States
    • United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court — Southern District of New York
    • July 20, 2005
    ...will damage the property of another is guilty of a trespass on such property." Sheppard Envelope Co. v. Arcade Malleable Iron Co., 335 Mass. 180, 187, 138 N.E.2d 777 (Mass.1956) (upholding the lower courts decision to grant a claim for trespass based on pollutants from the defendants f......
  • Dryden Oil Co. of New England, Inc. v. Travelers Indem. Co., No. 95-1608
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • October 5, 1995
    ...since trespass is not necessarily an intentional tort under Massachusetts law. See Sheppard Envelope Co. v. Arcade Malleable Iron Co., 335 Mass. 180, 138 N.E.2d 777 (1956) (airborne emissions of cinders and other gritty materials, negligent or otherwise, constitute a continuing trespass). I......
  • Bills v. Nunno
    • United States
    • Appeals Court of Massachusetts
    • April 30, 1976
    ...283] and cases cited. Carroll v. Hinchley, 316 Mass. 724, 728, 56 N.E.2d 608 (1944); Sheppard Envelope Co. v. Arcade Malleable Iron Co., 335 Mass. 180, 184, 138 N.E.2d 777 (1956); John P. Condon Corp. v. State Line Contrs., Inc., 353 Mass. 137, 139, 228 N.E.2d 702 (1967); RIX V. LOWELL GAS ......
  • Request a trial to view additional results
30 cases
  • Peters v. Archambault
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 8, 1972
    ...N.E.2d 564. Blood v. Cohen, 330 Mass. 385, 388--389, 113 N.E.2d 448. Sheppard Envelope Co. v. Arcade Malleable [361 Mass. 93] Iron Co., 335 Mass. 180, 187--189, 138 N.E.2d 777. Ottavia v. Savarese, 338 Mass. 330, 336--337, 155 N.E.2d 432. Brink v. Summers, 352 Mass. 786, 227 N.E.2d 476. In ......
  • In re Worldcom, Inc., Bankruptcy No. 02-13533 (AJG).
    • United States
    • United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court — Southern District of New York
    • July 20, 2005
    ...will damage the property of another is guilty of a trespass on such property." Sheppard Envelope Co. v. Arcade Malleable Iron Co., 335 Mass. 180, 187, 138 N.E.2d 777 (Mass.1956) (upholding the lower courts decision to grant a claim for trespass based on pollutants from the defendants f......
  • Dryden Oil Co. of New England, Inc. v. Travelers Indem. Co., No. 95-1608
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • October 5, 1995
    ...since trespass is not necessarily an intentional tort under Massachusetts law. See Sheppard Envelope Co. v. Arcade Malleable Iron Co., 335 Mass. 180, 138 N.E.2d 777 (1956) (airborne emissions of cinders and other gritty materials, negligent or otherwise, constitute a continuing trespass). I......
  • Bills v. Nunno
    • United States
    • Appeals Court of Massachusetts
    • April 30, 1976
    ...283] and cases cited. Carroll v. Hinchley, 316 Mass. 724, 728, 56 N.E.2d 608 (1944); Sheppard Envelope Co. v. Arcade Malleable Iron Co., 335 Mass. 180, 184, 138 N.E.2d 777 (1956); John P. Condon Corp. v. State Line Contrs., Inc., 353 Mass. 137, 139, 228 N.E.2d 702 (1967); RIX V. LOWELL GAS ......
  • Request a trial to view additional results

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