Town of Belmont v. Parent
| Decision Date | 31 May 1939 |
| Citation | 7 A.2d 255 |
| Parties | TOWN OF BELMONT v. PARENT et al. |
| Court | New Hampshire Supreme Court |
Transferred from Superior Court, Belknap County; Young, Judge.
Bill in equity by Town of Belmont to enjoin Leger Parent and another from dealing in junk and maintaining a place for its storage and sale. Case transferred on defendants' exception to findings and rulings of the trial court.
Exception overruled.
Bill in equity, to enjoin the defendants from dealing in junk and maintaining a place for its storage and sale. Trial by the court resulted in a finding that the defendant Malvina Parent is the owner of property in the Town of Belmont whereon the defendant Leger Parent is maintaining and operating a place for the purchase, sale and barter of articles described in Section 1, Chapter 159 of the Public Laws (viz. second-hand articles, including automobile tires and parts, old papers and rags), without a license and in a place not designated for the carrying on of such business. The defendants were enjoined from dealing in the commodities aforesaid, from keeping a shop for the purchase, sale or barter thereof, and from accumulating, storing or handling the same until duly licensed, and then only in a place designated for that purpose. To these findings and rulings the defendants excepted. All questions of law raised by said exception were transferred by Young, J. Further facts appear in the opinion.
Harold E. Wescott, of Laconia, for plaintiff.
Dyer & Doherty, of Laconia (James W. Doherty, of Laconia, orally), for defendants.
There was evidence from which the following facts might be found: The premises in question are located on Concord Street, within the village fire precinct of Belmont. At the time of the trial, the defendant Leger had been maintaining a junk-yard there for seventeen years, and he also made his home there. A pile of old tires, numbering about two thousand, was located some fifty feet from the house and eight or ten feet from the garage. In the barn were stored about twenty tons of baled paper. The pile of tires was within fifty or sixty feet of the barn mentioned. Distant about one hundred feet from the barn is a house which could be found to belong to a stranger to these proceedings. In the barn, besides the paper, were a few bags of rags and a little burlap. On the premises were some used cars, and Leger also dealt in automobile parts, which his testimony suggested was an important part of his business.
In the spring of 1938 the selectmen of Belmont requested Leger to remove his junk business from the premises. He refused. On or about June 26 the selectmen voted to require that all such business in the town be put under license in accordance with P.L. c 159. On June 28 they notified Leger in writing that from and after July 1 he would have to hold such a license. They also stated that his junk-yard in the present location was a menace to the town's water supply.
At a conference between him and the selectmen on June 30, Leger asked informally for a license to do business at the place he now occupies, but the selectmen told him that they could not approve that place. It could be found that this informal denial of Leger's informal application rested upon the finding that the premises as used by him involved a firehazard as well as a menace to the water-supply. At this conference, the selectmen offered to get Leger a piece of land elsewhere and to move his property there with the trucks of the town, but no specific place was named. The offer could be found to have been in good faith, whether or not the selectmen had authority to make it, and has some bearing upon the question whether their attitude was reasonable, rather than arbitrary. The selectmen desired Leger to continue in business, but without the...
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