Wilbur v. City of Newton

• Decision Date: 02 November 1940
• Citation: 29 N.E.2d 689,307 Mass. 191
• Parties: WILBUR v. CITY OF NEWTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

307 Mass. 191

29 N.E.2d 689

WILBUR

v.CITY OF NEWTON.

Supreme Judicial Court of Massachusetts, Middlesex.

Nov. 2, 1940.

Report from Superior Court, Middlesex County; Good, Judge.

Suit by George S. Wilbur and others against the City of Newton to restrain the city from enforcing a zoning ordinance wherein the city counterclaimed to restrain certain plaintiffs from using buildings as a sand and gravel plant, and wherein defendants filed a petition to have the plaintiffs committed for contempt for failure to comply with the terms of a final decree after rescript. The judge entered a decree adjudging plaintiffs in contempt and continued the proceeding for sentence and reported the case for the determination of the Supreme Judicial Court.

Interlocutory decree affirmed.

Argued before FIELD, C. J., and DONAHUE, DOLAN, COX, and RONAN, JJ.

A. V. A. Thomason and C. S. Hartwell, both of Boston, for plaintiff.

W. G. Guernsey, of Boston, for defendant.

DOLAN, Justice.

This is a petition in the above entitled suit in equity under which the defendant in that suit seeks to ahve the plaintiffs therein ‘committed’ for contempt for failure to comply with the terms of the final decree after rescript. Wilbur v. Newton, 302 Mass. 38, 18 N.E.2d 365.

On January 11, 1940, the judge entered a decree adjudging the plaintiffs in contempt, and continued the proceeding for sentence. On May 17, 1940, at the request of the plaintiffs, the judge in the language of G.L. (Ter.Ed.) c. 214, § 30, reported for the determination of this court the question whether the plaintiffs have complied with the final decree after rescript. While the decree entered by the judge in the present proceeding adjudging the plaintiffs in contempt is plain and unequivocal, yet, since he continued the case for sentence, the decree does not finally dispose of the case, and is to be deemed interlocutory in its nature, and hence the subject of reportunder G.L.(Ter.Ed.) c. 214, § 30. See Cherry v. Cherry, 253 Mass. 172, 176, 148 N.E. 570.

The final decree after rescript was entered on March 17, 1939. So far as material it reads as follows: ‘That the plaintiffs George S. Wilbur and The Highland Sand and Gravel Company, Inc., be and hereby are permanently enjoined and restrained from and after sixty days from the date of the entry of this decree from erecting, maintaining, using or operating building upon the land described in the plaintiffs' bill of complaint for the purposes of or in connection with the removal of sand and gravel from or sale thereof upon said premises.’

At the trial of this proceeding the defendant conceded that after the entry of final decree the plaintiffs took down the ‘scale house’ and ‘pump house’ and removed the roof of the sand hopper and some of the boarding ‘at the very top that protected the machinery.’ The parties agreed that the sole issue was whether the socalled sand hopper or hopper is a building within the meaning of the final decree after rescript or is now a structure in compliance with that decree. Photographs of the sand hopper, showing its condition at the time of entry of final decree and its condition after the roof and certain top boards had been removed, were received in evidence and are reproduced in the record. There was also evidence descriptive of the purposes and construction of the sand hopper, known ‘in the trade’ as a screening tower, and there was testimony by a building contractor ‘that a building is a structure, but that not all...