Sherry v. Perkins

• Decision Date: 19 June 1888
• Citation: 17 N.E. 307,147 Mass. 212
• Parties: SHERRY v. PERKINS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

147 Mass. 212

17 N.E. 307

SHERRY v. PERKINS et al.

Supreme Judicial Court of Massachusetts, Essex.

June 19, 1888

COUNSEL

H.F Hurlburt, R. Lund, and T.M. Osborne, for plaintiff.

The principal question in this case is whether this court, as a court of equity, has jurisdiction to enjoin the acts complained of, upon the findings of facts reported by the justice who heard the case. The carrying of a banner or placard before a person's place of business, which injures such person in his business and property, is a private nuisance. An authority directly in point is Gilbert v. Mickle, 4 Sandf.Ch. 357, in which it was held that a placard paraded or posted in a public street before the door of an auctioneer, cautioning strangers to beware of mock auctions, constituted a private nuisance remediable by injunction. The injunction in that case was refused upon grounds not affecting the jurisdiction of the court. If the highway is obstructed by crowds of people in consequence of the banner's being carried as described in the bill, such carrying of the banner is a public nuisance. Rex v. Cross, 3 Camp. 224; Rex v. Carlile, 6 Car. & P. 636; Reg. v. Grey, 4 Fost. & F. 73. But as the damage to the business and property of the plaintiffs, found in the report, is special to the plaintiffs, they are entitled to an injunction. Walker v Brewster, L.R. 5 Eq. 25; Stetson v. Faxon, 19 Pick. 147; Soltau v. De Held, 2 Sim.(N.S.) 133. The entire scheme, "by threats and intimidation, to prevent persons in the employment of the plaintiffs, as lasters, from continuing in such employment, and in like manner to prevent other persons from entering into such employment as lasters," is a private nuisance to the plaintiffs. Wood, Nuis. § 141, and cases cited. Among the things which have been held to be private nuisances are a market illegally conducted within the limits of an established market, ( Yard v. Ford, 2 Saund. 172;) a ferry carried on without right, near a duly-licensed ferry, (Stark v. McGowen, 1 Nott. & McC. 387;) the use of a toll-bridge inside the limits of a lawfully established toll-bridge, ( Bridge Co. v. Lewis, 63 Barb. 111.) See 1 Com.Dig. "Action on the Case for Nuisance," C. The scheme in which the defendants are found to have participated, has the same elements of injury as these cases of nuisance. It is illegal, injurious to property, and continuous in character. See Railroad Co. v. Church, 108 U.S. 317, 2 S.Ct. 719. This court has full power to restrain a private nuisance by injunction, both under the special provision of the statute, (Pub.St. c. 151, § 2, cl. 9,) and by virtue of its general equity powers conferred by the statute of 1877, c. 178, which is embodied in Pub.St. c. 151, § 4. The jurisdiction in equity now possessed by this court is not limited by any restriction contained in the last clause of Gen.St. c. 113,§ 2, but is in all respects as full as that of the English court of chancery. 1 Pom.Eq.Jur. §§ 311, 312. In respect to private nuisances, the English court of chancery has from early times exercised the right to restrain by injunction. This is not limited to cases in which there is no redress at law. Indeed, the ability to recover substantial damages at law has been declared to give the right to ask for an injunction against the continuance of the nuisance. Lord ROMILLY, M.R., in Crump v. Lambert, L.R. 3 Eq. 409, 412; 2 Story, Eq.Jur. § 925 et seq.; 1 Pom.Eq.Jur. § 252; 3 Pom.Eq.Jur. § 1350; Emperor v. Day, 3 De Gex, F. & J. 240, 241, (Lord CAMPBELL.) The scheme in which the defendants participated was plainly illegal and criminal, both under the statute and by common law.Pub.St. c. 74, § 2; Reg. v. Druitt, 10 Cox, Crim.Cas. 592; Com. v. Hunt, 4 Metc. 111; Com. v. Dyer, 128 Mass. 70. But the illegality of the nuisance, or its criminal character, does not prevent the court from enjoining it. Gilbert v. Mickle, 4 Sandf.Ch. 358, Lord CAIRNS in Assurance Co. v. Knott, L.R. 10 Ch. 144. The jurisdiction of courts of chancery over private nuisances is concurrent with that of courts of law. Fisk v. Wilber, 7 Barb. 395. This court has repeatedly exercised its jurisdiction to restrain private nuisances. Cadigan v. Brown, 120 Mass. 493; Mills v. Mason, Id. 244; Woodward v. Worcester, 121 Mass. 245; Tucker v. Howard, 122 Mass. 529; Davis v. Sawyer, 133 Mass. 289. But, whatever the injury complained of may be called, there is abundant authority for the intervention of a court of equity to prevent injury to property by unlawful or forcible acts, when the injury is continuous. Macaulay v. Shackell, 1 Bligh, (N.S.) 96, 127; Lord ELDON in Gee v. Pritchard, 2 Swanst. 402, 413; Emperor v. Day, 3 De Gex, F. & J. 217, 240, 241, 253; Spinning Co. v. Riley, L.R. 6 Eq. 551, 37 L.J.Ch. 889, and 19 Law T.(N.S.) 64. The various cases in which the unauthorized use of the plaintiff's name has been restrained, go upon the principle of the injury to property involved. Routh v. Webster, 10 Beav. 561; James v. James, L.R. 13 Eq. 421; Hookham v. Pottage, L.R. 8 Ch. 91; 3 Pom.Eq.Jur. § 1358. The case of Spinning Co. v. Riley, supra, is almost precisely parallel to the present case, except that in the present case the placards are paraded in a manner which makes them more distinctly a nuisance than if they were merely posted up. See, also, Dixon v. Holden, L.R. 7 Eq. 488; Assurance Co. v. Knott, L.R. 10 Ch. 142; Mulkern v. Ward, L.R. 13 Eq. 619; Food Co. v. Massam, 6 Ch.Div. 582. In November, 1874, the judicature act went into effect, and in a decision under the act, in the case of Saxby v. Easterbrook, 3 C.P.Div. 339, it was held that, after the jury had found the fact of libel, an injunction would issue against the continuance of the libel. Thomas v. Williams, 14 Ch.Div. 864, (1880,) FRY, J.; Loog v. Bean, 26 Ch.Div. 306. In this court the case of Spinning Co. v. Riley, was referred to in the case of Diatite Co. v. Manufacturing Co., 114 Mass. 69, and the dissent there expressed to the views of MALINS, V.C., must be understood as applicable only so far as the language of the former case applies to the question of libel, since the question of libel did not arise in that case. The same is true of the reference to the same case in Partridge v. Hood, 120 Mass. 403, 406. See 3 Pom.Eq.Jur. § 1358. As to private nuisance, Bridge v. Bridge, 6 Pick. 376; 2 Story, Eq.Jur. §§ 925-928. As to the criminal character of the acts complained of: The fact that the nuisance is indictable as a nuisance does not prevent the court from enjoining its continuance. 1 High, Inj. §§ 745, 752, and cases cited; Attorney General v. Hunter, 1 Dev.Eq. 12; People v. St. Louis, 5 Gilman, 351. The English judicature act did not enlarge the jurisdiction of courts of equity. Day v. Brownrigg, 10 Ch.Div. 294; Gaskin v. Balls, 13 Ch.Div. 324. As to differences between this court, as a court of equity, and the English chancery court before 1874, see remarks of WELLS, J., in Milkman v. Ordway, 106 Mass. 232, 255. The acts are not libelous, but calculated to injure trade by direct interference. See Bridge v. Bridge, 6 Pick. 398; Carew v. Rutherford, 106 Mass. 1, 15. As to the parties against whom the injunction should issue, inasmuch as the Lasters' Protective Union is a voluntary association, and all its members cannot be ascertained by the plaintiff, the same rule applies which makes it proper for a few individuals to sue in behalf of such an organization represented by and associated with the defendants named in the bill. See Birmingham v. Gallagher, 112 Mass. 190; Snow v. Wheeler, 113 Mass. 179; 1 Daniell, Ch.Pr. (4th Ed.) 272, note 5.

John R. Baldwin, for defendants.

The carrying of the banner named in the report, in the manner as stated in the bill of complaint, is not a nuisance. If the words printed on the banner are libelous, the complainants have an adequate remedy at law. Equity will not restrain a libel. The manner of the publication of the words on the banner cannot be restrained. The case of Spinning Co. v. Riley, L.R. 6 Eq. 551, is not a precedent that establishes the injunctive jurisdiction. That case has been expressly overruled by Assurance Co. v. Knott, L.R. 10 Ch. 145, and unfavorably noticed in Diatite Co. v. Manufacturing Co., 114 Mass. 69. The prayer of the bill is so broad that no decree comporting with the terms thereof would be equitable.

OPINION

W. ALLEN, J.

The case finds that the defendants entered, with others, into a scheme, by threats and intimidation, to prevent persons in the employment of the plaintiff from continuing in such employment, and to prevent others from entering into such employment; that the banners, with their inscriptions, were used by the defendants as part of the scheme, and that the plaintiff was thereby injured in his business and property. The act of displaying banners with devices, as a means of threats and intimidation, to prevent persons from entering into or continuing in the employment of the plaintiff, was injurious to the plaintiff, and...