Tortorella v. Traiser

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation284 Mass. 497
Decision Date29 November 1933

May 10, 1933.

Present: RUGG, C.


Nuisance. Equity Jurisdiction, To enjoin maintenance of nuisance.

Equity Pleading and Practice, Master: findings.

While a noise may constitute an actionable nuisance, it must be such a noise as affects injuriously the health or comfort of ordinary people in the vicinity to an unreasonable extent.

In a suit in equity to restrain the maintenance by the defendant, a manufacturer of cigars, of what the plaintiff alleged to be a nuisance in so erecting and installing certain cigar-making machines in his factory that loud and disturbing noises were created while they were in operation, a master found that the factory was located in a business district zoned in such manner as not to prohibit the defendant's business; that the noises were annoying and disturbing to occupants of the plaintiff's premises; that they tended to create irritability and headaches; that they interfered with the sleep of a tenant of the plaintiff who worked by night and slept by day; that they were of such a character as would affect the comfort of a sick person; that by reason of them the rental value of the plaintiff's premises had been reduced to some extent but not to an extent which could be stated; but that no one on the plaintiff's premises had suffered materially from the noise in comfort or health; that the sanitary conditions for the defendant's workmen were materially improved through the use of the machines; that there was no negligent act of the defendant in failing to lessen the noise; that the expense of installing devices to lessen the noise would be unreasonable; and that the operation of the factory did not unreasonably interfere with the comfort, health or property of the

plaintiff. The bill was dismissed.

Held, that

(1) The finding that loss of rental value had been caused, when taken with the further statement by the master that the extent thereof could not be stated, failed to show diminished value of the premises so unreasonable as to establish a nuisance;

(2) No nuisance was shown, and the bill properly was dismissed.

It is proper for a master in a suit in equity to include in his report findings upon mixed questions of fact and law.

BILL IN EQUITY filed in the Superior Court on October 7, 1932, and described in the opinion.

The suit was referred to a master. Material facts found by the master are stated in the opinion. The plaintiff moved that the master's report be recommitted "for further hearing," without further specification, and filed objections to the report. After hearing by Whiting, J., there were entered by his order an interlocutory decree denying the motion to recommit; another interlocutory decree overruling the exceptions to the report and confirming it "in so far as it finds facts"; and a final decree dismissing the bill. The plaintiff filed separate appeals "from the interlocutory decree confirming master's report" and from the final decree. There was no appeal from the interlocutory decree denying the motion to recommit the master's report.

F. Ramacorti, (E.

Brams with him,) for the plaintiff.

F. B. Turner, for the defendant.

WAIT, J. The plaintiff brings this bill in equity to restrain the defendant from maintaining on its premises, on Merrimac Street, in Boston, what she alleges to be a nuisance in so erecting and installing certain cigar-making machinery that loud and disturbing noises are created while it is in operation. She also asks that damages be awarded.

A master reported findings of fact in substance as follows: The plaintiff owns premises on South Margin Street in Boston, distant about eighty feet from the factory of the defendant. When she purchased, in 1903, the neighborhood was largely residential but it has changed until now it is more of a business than a residential district. Under the zoning act, St. 1924, c. 488, the district is zoned partly as "industrial" and partly as "general business," both classes permitting such use as the defendant makes of its premises. Before 1917 the defendant made cigars by hand. Machines have been installed from time to time to do this work; but no nuisance is alleged to have resulted until January of 1932. Between May, 1931, and January, 1932, fourteen machines were installed on the fourth floor of the factory equipped in accord with the present ventilating or suction system with a common motor and exhaust emptying in a dust collector on the roof. Noise results. Air is sucked from the floor of the room where the machines stand, with force sufficient to hold tobacco leaf so firmly to the machines that it may be cut as required and is driven to the dust collector on the roof. The system is not used to its full capacity. Fourteen machines are installed, though the system could handle forty. The change made does not increase the output of the factory but, by preventing the accumulation of dust from the atmosphere and from the tobacco about the machines, renders the shop and product much more sanitary. Competition makes the installation of the system necessary for the defendant's business.

The noise produced is continuous between the hours from 7:20 A.M. to noon, and from 1:00 to 4:30 P.M. on five days of the week. On the street in front of the plaintiff's premises, mingled with the sounds of the street, it is audible but not obtrusively so unless to one attending to it. It is decidedly more audible and noticeable from the plaintiff's rear rooms whether the windows be open or closed, but not so loud as in the different parts of the defendant's factory.

Its chief characteristic is its steady monotony. It is higher in pitch and more monotonous than the noise of continuous and uninterrupted passage of street traffic. It is annoying and disturbing to occupants of the plaintiff's premises. It tends to create irritability and headaches and it interferes with sleep of a tenant who works at night and sleeps by day. It would interfere with the comfort of a sick person. No one in the plaintiff's premises has suffered materially in comfort or health as a result of the noise. "If material, I find that the operation of the present system now in use and above described has reduced the rental value of the plaintiff's premises. I am unable to state to what extent it has been so reduced." Devices suggested probably, would lessen the noise, but not appreciably, and at an expense...

To continue reading

Request your trial
3 cases
  • Tortorella v. H. Traiser & Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • December 4, 1933
  • Robinson v. Gould
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • November 29, 1933
  • Robinson v. Gould
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • December 1, 1933

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT