Thurlow v. Crossman
Decision Date | 27 June 1957 |
Citation | 336 Mass. 248,143 N.E.2d 812 |
Parties | Irja S. THURLOW v. Kenneth A. CROSSMAN. |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Howard S. Whiteside, Boston, for plaintiff.
Robert L. Yasi, Boston, for defendant.
Before WILKINS, C. J., and RONAN, WILLIAMS, WHITTEMORE and CUTTER, JJ.
This action of trespass was referred to an auditor with an order that his findings of fact be final. He reported that the plaintiff was the owner of land and buildings at 278 Water Street, Newburyport. Behind the dwelling house in which she and her husband lived was a building used by her husband, Burnley S. Thurlow, which overlooked the Merrimac River and was used by him as a storage and processing plant in connection with the shellfish industry. The defendant was a 'supervisor coastal warden, department of natural resources, division of law enforcement for the Commonwealth of Massachusetts.' On the evening of February 8, 1955, he was investigating certain activities on the river flats and was watching persons in the vicinity of the plaintiff's home. He suspected that claims were being dug illegally and might be delivered to Thurlow's plant. About 8 p. m. 'in the performance of his duty' he backed the State owned automobile which he was operating into the Thurlow driveway 'to prevent any headlight flash signals being given to persons on the flats from that * * * driveway' and also to be in a position to see if any one came from the flats to deliver clams, illegally taken, to the plant. In a few minutes Thurlow came out of the house and ordered the defendant to leave the premises.
The auditor found 'that the defendant was not trespassing upon the land of the plaintiff, but was properly there in the performance of his duties under the provisions of G.L. (Ter.Ed.) c. 130 , § 6A, and c. 631 of the Acts of 1953.' Motions for the entry of judgment were filed by the respective parties and the judge found for the defendant. The plaintiff appealed from the finding, which was in effect an order for judgment from which an appeal lies under G.L. (Ter.Ed.) c. 231, § 96. National Cash Register Co. v. Warner, Mass., 142 N.E.2d 584. It was the duty of the judge, and is now our duty to enter the correct judgment on the auditor's report. Union Old Lowell National Bank v. Paine, 318 Mass. 313, 315, 61 N.E.2d 666.
The defendant in his capacity as enforcement officer was authorized, in the performance of his duties, to 'enter upon and pass through or over private property or lands whether or not covered by water.' G.L.(Ter.Ed.) c. 21, § 6D, as appearing in St.1953, c. 631, § 1. See also G.L. (Ter.Ed.) c. 130, § 7, as appearing in St.1941, c. 598, § 1. Such right of entery and passage was not, as contended by the plaintiff, an unlawful limitation on her right to the exclusive use of her land. Parker v. Barnard, 135 Mass. 116, 117. '[R]ights of property are held subject to such reasonably control and regulation of the mode of keeping and use as the legislature, under the police power vested in them by the Constitution of the Commonwealth, may think necessary for the * * * security of the public health and welfare.' Blair v. Forehand, 100 Mass. 136, 139. See Commonwealth v. Alger, 7 Cush. 53, 84-85.
It is held generally at common law that public officers may legally enter upon land privately owned when necessary to carry out their official duties. Instances in point are entry by commissioners to survey the bounds of a public landing place, by selectmen to run boundary lines and renew marks, and by county commissioners to view and survey proposed highways. Winslow v. Gifford, 6 Cush. 327. Lawful entry may be made 'to save goods which are in jeopardy of being lost or destroyed by water, fire, or any like danger' (Proctor v. Adams, 113 Mass. 376, 378), to prevent the spread of fire (Taylor v. Plymouth, 8 Metc. 462, 465; Metallic Compression Casting Co. v. Fitchburg Railroad, 109 Mass. 277; Hyde Park v. Gay, 120 Mass. 589, 593), and to make arrests (Barnard v. Bartlett, 10 Cush. 501; Commonwealth v. Irwin, 1 Allen, 587, 589-590; Commonwealth v. Reynolds, 120 Mass. 190, 196; Blatt v. McBarron, 161 Mass. 21, 22, 36 N.E. 468). A police officer who enters upon private premises in good faith in the performance of his official duty to protect life and property and to preserve the peace is not a trespasser. Parker v. Branard, 135...
To continue reading
Request your trial-
Gallagher v. S. Shore Hosp., Inc.
...from § 197. Section 17 was an unrelated section, later omitted from the Restatement.34 The first judge also cited Thurlow v. Crossman, 336 Mass. 248, 251, 143 N.E.2d 812 (1957), which stated that "[a] police officer who enters upon private premises in good faith in the performance of his of......
-
Uptown Enterprises v. Strand
...P.2d 868; Giacona v. United States, 5 Cir., 257 F.2d 450, 456; Heinze v. Murphy, 180 Md. 423, 24 A.2d 917, 922; Thurlow v. Crossman, 336 Mass. 248, 143 N.E.2d 812, 813-814; cf. People v. Roberts, 47 Cal.2d 374, 377, 303 P.2 721--stating the rule that necessity may justify an entry which oth......
-
Com. v. Thomas
...(see also c. 94, §§ 35, 60), giving drug inspectors authority to enter certain premises in aid of law enforcement; Thurlow v. Crossman,336 Mass. 248, 250--252, 143 N.E.2d 812. See also Commonwealth v. Murphy,353 Mass. 433, 437--438, 233 N.E.2d 5; Carlisle v. Department of Pub. Util.,353 Mas......
-
People v. Laverne
...198 N.Y.S. 646; Givner v. State, 210 Md. 484, 124 A.2d 764; Richards v. City of Columbia, 227 S.C. 538, 88 S.E.2d 683; Thurlow v. Crossman, 336 Mass. 248, 143 N.E.2d 812; cf. State v. Buxton, 238 Ind. 93, 101, 148 N.E.2d 547, and cases cited in n. 5 thereat; City of St. Louis v. Evans, 337 ......