Weltshe v. Graf

• Decision Date: 07 December 1948
• Citation: 323 Mass. 498,82 N.E.2d 795
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: ROBERT W. WELTSHE & others v. HENRY GRAF, JUNIOR,& another.

323 Mass. 498

82 N.E.2d 795

ROBERT W. WELTSHE & others v. HENRY GRAF, JUNIOR,& another.

Supreme Judicial Court of Massachusetts, Essex.

December 7, 1948

November 5, 1948.

Present: QUA, C J., RONAN, WILKINS, SPALDING, & WILLIAMS, JJ.

Nuisance. Zoning.

The fact that a particular kind of enterprise is permitted by a zoning ordinance does not make it lawful to carry on the enterprise in such a manner as to constitute a private nuisance, but that fact may be considered in determining whether or not there is such a nuisance.

Operation of a freight terminal of a general trucking business on land in a city located at the boundary between a district zoned for business and one zoned for residential use was a private nuisance because various noises arising from loading and unloading trucks, sorting freight, moving trucks, and voices at the terminal during the night were "amply adequate to interfere . . . with the rest, comfort and sleep of an ordinary person in ordinary health" and did so affect residents of the neighborhood and persons at a nearby hotel and the proprietor of the business must be enjoined from loading and unloading trucks and sorting freight at the terminal between eight o'clock in the evening and seven o'clock in the morning.

BILL IN EQUITY filed in the Superior Court on August 29, 1947. The suit was heard on a master's report by Brogna, J.

T. S. Herlihy, for the plaintiffs. B. J. Lojko, for the defendants.

RONAN, J. The plaintiff Weltshe owns and operates a hotel known as the Wolfe Tavern, which is located upon the southwesterly corner of State and Harris streets in Newburyport. With certain interruptions, this hotel has been conducted since 1812 although since the last war it has been operated only during the summer months of each year. The other plaintiffs own property and live in the neighborhood contiguous to the hotel. The defendants are copartners engaged in the general trucking business, and maintain a freight terminal on premises located on the southerly side of Harris Street and abutting upon the rear of the hotel premises. The plaintiffs brought this bill in equity alleging that the operation of this freight terminal constituted a nuisance and sought an injunction. A report of a master has been confirmed and a final decree entered dismissing the bill. The appeal of the plaintiffs brings the suit here.

The business of the defendants, which began at the Harris Street location in 1943, has grown to substantial proportions. They transport merchandise of any size and description all over New England employing thirteen trucks, four of which are eight ton trucks of the tractor and trailer type. The remaining trucks are of three to five tons capacity. Their employees report for work at seven o'clock in the morning, taking out the delivery trucks which have been loaded during the preceding night and in the course of their work picking up other merchandise which is transported to the Harris Street terminal for sorting and subsequent delivery. The employees of the defendants start work at the terminal between five in the afternoon and eight o'clock in the evening, unloading trucks, sorting the merchandise, and loading trucks for delivery to different localities the next day. This work causes "sharp reports of colliding metal merchandise, the dull thud of heavy objects propelled to their consigned places, the rattle of chains and a variety of other sounds incidental to the wholesale handling in a condensed area of a multiple variety of merchandise." These sounds are accompanied by noises arising from the changing of the positions...