Whitcomb v. Vigeant

• Decision Date: 02 March 1922
• Citation: 134 N.E. 241,240 Mass. 359
• Parties: WHITCOMB et al. v. VIGEANT et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

240 Mass. 359

134 N.E. 241

WHITCOMB et al.

v.VIGEANT et al.

Supreme Judicial Court of Massachusetts, Worcester.

March 2, 1922.

Appeal from Superior Court, Worcester County; James H. Sisk, Judge.

Suit by Walter E. Whitcomb and others against Pierre Vigeant and another. From a decree dismissing the bill, plaintiffs appeal. Affirmed.

The bill alleged that complainants were property owners, and brought the bill for themselves and on behalf of all other residents and owners affected by the matters complained of; that a district about the corner of two streets was of a residential character; that the defendant Vigeant was threatening to erect a public dance hall at such corner, and had started construction thereon, and upon completion intended to apply to the other defendant, Henry F. Sawtelle, for a license to maintain and conduct the building as a public dance hall; that the defendant Sawtelle, in his capacity as mayor, was vested with power to grant or refuse licenses, but that such power was not to be exercised unreasonably or without due regard to the rights of the public; that notwithstanding such obligation, Sawtelle intended to grant a license, and did not intend to grant any hearing to the complainants or the public; that the location where Vigeant was building such dance hall was entirely unsuitable and unreasonable, that the noise therefrom would greatly disturb the peace and quietness of the district, and cause much annoyance, discomfort, and hurt, and be harmful to the health and comfort of complainants and others living in the vicinity, and that its presence and operation would greatly injure the whole moral tone of the district, damage its residential character and its desirability as a residence section, and constitute a nuisance; and that it would cause a marked depreciation in the value of complainants' real estate. The defendants separately demurred on the grounds that the action was prematurely brought; that there was no equity in the bill; that plaintiffs had an adequate remedy at law; and that the court could not enjoin a public official under the circumstances cited.Gardner K. Hudson and Ralph W. Robbins, both of Fitchburg, and George M. Barrows, of Ayer, for appellants.

James M. Hoy, of Boston, James H. P. Dyer and James F. Coburn, both of Leominster, and John M. Russell, of Boston, for appellees.

RUGG, C. J.

Various householders seek by this suit in equity to enjoin the respondents, one of whom is mayor of Leominster and the other of whom is a resident of that city intending to erect and complete in the vicinity of the homes of the several plaintiffs a public dance hall of an open type for continual use during summer seasons. There are allegations of purpose by the defendant Vigeant, immediately upon the completion of the building, to apply to the mayor for a license to conduct a public dance hall, that the mayor is vested by law with authority to grant such license, that he will grant such license without hearing the plaintiffs, that the proposed location is wholly unfit for a public dance...