City of Somerville v. O'Neil

Colt, J. The St. of 1871, c. 167, prohibits in any place of more than four thousand inhabitants the use of any building for noxious or offensive trades without the written consent of the municipal authorities. It excepts from its provisions buildings or premises then actually occupied for such purposes, but forbids their enlargement or extension. It is contended that the erection of a new' building by the defendant in place of others, to be used for the accommodation of the same business in the same place, comes within the prohibition. In Watertown v. Sawyer, 109 Mass. 320, it was attempted to restrain the erection of such a building in place of one destroyed by fire ; but it was held that where there was no intention to abandon the use to which the premises had been previously devoted, the destruction of the building would not involve the forfeiture of the right to continue the business in the same place in a new building of no larger capacity. The plain intention of the act is to exempt the business of existing establishments in the places where they were then located [355] from the restrictions contained in its provisions, while at the same time limiting the future business to be carried on in them by the capacity of the buildings and premises then used. To this extent it affords protection to such business without reference to the identity of the building which happened to be standing when the law was enacted. Upon the facts reported it does not appear that the defendant has enlarged the premises occupied by him for the business in question, or that he has increased or purposes to increase that business. Bill dismissed.