Wright v. Lyons
| Decision Date | 19 May 1916 |
| Citation | 112 N.E. 876,224 Mass. 167 |
| Parties | WRIGHT v. LYONS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Suffolk County; William Cushing Wait, Judge.
Suit by Alice Wright against John B. Lyons. From a decree for defendant, plaintiff appeals. Reversed.
James H. Kenney, of Boston, for complainant.
James H. Devlin, Jr., of Boston, for respondent.
This is a suit in equity to restrain the defendant from erecting a garage in Boston. The petition alleges that the plaintiff, a resident of Boston, with her two sisters, who live outside the commonwealth, are owners as tenants in common of premises abutting upon those of the defendant on Warrington street in Boston; that in July, 1915, the defendant filed a petition with the street commissioners of Boston for a permit to erect a public garage and for a license to keep, store and sell five hundred gallons of gasoline in an underground tank upon his estate, upon which petition the defendant was ordered to give notice by publication and by sending ‘by prepaid registered mail a copy to every owner of record of each parcel of land abutting on the parcel of land on which’ the defendant proposed to erect and maintain his garage; that no notice was given to the plaintiff, who did not know of the publication of the notice, and that she never has had an opportunity to object to the granting of the license, and that the erection of the garage on the defendant's premises and the exercise of the rights conferred by the license constitutes a nuisance to the plaintiff's property and depreciates its value by reason of being a source of much noise, confusion and distasteful odors. The defendant's demurrer to the bill was sustained and the plaintiff's appeal from the final decree dismissing the bill brings the case here. The act under which the street commissioners undertook to proceed is St. 1913, c. 577, St. 1914, c. 119. The statute requires a petition for a permit, such as that averred by the plaintiff's bill to have been asked for by the defendant, to ‘contain the names and addresses of every owner of record of each parcel of land abutting thereon,’ and that before the license is granted notice shall be given by registered mail ‘to every owner of record of each parcel of land abutting on the parcel’ on which the building is sought to be erected.
The words of the statute make it mandatory that where there are tenants in common of an abutting estate, each one must be notified. Only by giving them this meaning can effect be given to all the words used. It is the natural as well as the accurate signification of the language employed. Otherwise, as illustrated by the averments of the present bill, the only one of several owners in common in a position to be present at a hearing may have no knowledge whatever of the proceeding until after the permit has been granted.
This defect in the service of the order goes to the jurisdiction of the...
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...v. Port Jervis Gas-Light Co., 122 N.Y. 18, 25 N.E. 246, 9 L.R.A. 711; Huddleston v. Burnett, 172 Ark. 216, 287 S.W. 1013; Wright v. Lyons, 224 Mass. 167, 112 N.E. 876; Prendergast v. Walls, 257 Pa. 547, 101 A. State ex rel. National Oil Works of Louisiana v. McShane, 159 La. 723, 106 So. 25......
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