Town of Seekonk v. John J. McHale & Sons

• Citation: 90 N.E.2d 325,325 Mass. 271
• Parties: TOWN OF SEEKONK v. JOHN J. McHALE & SONS, Inc., et al.
• Decision Date: 06 February 1950
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

325 Mass. 271

90 N.E.2d 325

TOWN OF SEEKONK v. JOHN J. McHALE & SONS, Inc., et al.

Supreme Judicial Court of Massachusetts, Bristol.

February 6, 1950

Argued Oct. 24 1949.

G M. Owen, Taunton, for plaintiff.

A. E. Seagrave Fall River, for defendants.

Before QUA, C. J and RONAN, WILKINS, SPALDING and COUNIHAN, JJ.

QUA, Chief Justice.

The town is seeking to enforce against the defendants a provision in its zoning by-laws forbidding the use of 'premises' in a 'residence A district' 'for any purpose except' certain enumerated purposes which do not include use as a gravel pit. The trial judge entered a decree enjoining all the defendants from excavating or stripping said, gravel, and other materials from the land. The defendant corporation alone appeals. The evidence is reported.

It is exceedingly difficult to understand the evidence or even to delimit the land in question for the reason that the greater part of the testimony was given with reference by means of gestures to plans and to large photographs of areas of countryside apparently taken from the air. The witnesses pointed 'here' and 'there' to 'this' and 'that' but failed to describe or identify in words the places and objects meant. Much that must have been perfectly clear to the trial judge is untelligible to us. Findings of the facts now to be stated would have been supported by evidence or judicial knowledge and on such a record as we have before us could not be pronounced plainly wrong. The land is a tract of considerable size, with few, if any, buildings, in a residence A district. It is level and is located in a generally level country of residences and farm lands near the Rhode Island line in the vicinity of the city of Providence. It is owned by Eureka Realty Company, Inc. not a party to this suit. Adjoining or in close proximity to the tract on two sides are large bare sunken areas, the results of former diggings for gravel Under date of December 6, 1948, the corporate defendant, which was engaged in building roads and waterways, entered into a contract with Eureka Realty Company, Inc., wherein it was recited that the Eureka company was desirous of lowering the grade of a portion of its land 'to more nearly conform to the level of adjoining properties,' and wherein the corporate defendant agreed to change the grade of the Eureka company's land 'to conform to the direction and wishes' of that company, to receive and pay at four cents a yard for all material excavated except loam or topsoil, and to slope the excavated portion so as to make easy and gradual access thereto, 'using the loam and topsoil as cover,' all the work to be completed within one year. Shortly after the date of the contract the corporate defendant began pushing aside the loam and topsoil and excavating the gravel which it carried to a processing plant in the vicinity operated by a partnership in which two of the individual defendants were partners.

The appealing defendant contends that the work being done was, in substance, simply the grading of the Eureka land to slope it to the level of the adjoining excavations and make it more adaptable for building. But the judge did not take that view. He found that 'the undertaking here is to abstract sand and gravel from the land, and in so doing it is not to establish a grade to make it adaptable for residential purposes, but rather to take sand and gravel and destroy what is already adapted for residential purposes,' in other words to use the premises as a source of supply for gravel. There was evidence tending to show that the Eureka land was already, in its natural state, at the level of the surrounding country, except the pits previously dug, and that the digging which was being done would merely cause it, or a substantial part of it, to be added to the sunken and wasted areas of the other pits. There was no evidence of any...