Vaughan v. Bridgham

Loring, J. The plaintiffs and the defendants in the first suit are the owners and lessees of adjoining estates on the west side of Washington Street. The plaintiffs’ lot is north of that of the defendants. A passageway ten feet wide (over and in which the defendants in the first suit had rights) runs through the plaintiffs’ building next to the defendants’ building. A part of the plaintiffs’ building lies under and above the passageway. The dividing line between the two lots is the centre of a partition wall, and the northerly face of that partition wall makes the southerly face or side of the passageway. The defendants placed a bar, certain brackets, signs and a cornice on the northerly face of this partition wall. They also placed inside of their building an electric fan, “ with the result,” in the words of the memorandum of decision, ‘■‘that a stream of air more or less heated and impure and charged with offensive smells is sent into and across the passageway into the plaintiffs’ premises, thereby causing annoyance and discomfort to the plaintiffs and their tenants. I rule that the defendants have no right to so maintain and operate the fan as to send such a stream of air across the passageway into the premises occupied by the plaintiffs and their tenants, and that to do so constitutes an interference with and an invasion of the [396] rights of the plaintiffs and their tenants in the enjoyment of their property, for which they are entitled to relief. I rule that the defendants have a right to maintain windows and doors and other openings into and upon the passageway, for light and air, and to ventilate into the same by any proper means, if they do not thereby create a nuisance so as to interfere with the enjoyment by the plaintiffs and their tenants,of the premises occupied by and belonging to them.” A final decree was entered, by which it was ordered, adjudged and decreed: (First) That the fee of the passageway was in the plaintiffs, subject to a right of way appurtenant to the estate of the defendants and others, the centre line of the party wall being the division line between the two estates; it was further ordered, adjudged and decreed that the passageway was subject also “ to a right on the part of the defendants to maintain doors, windows, and other opening through said party wall for light and air, and entrance and exit, provided the strength of said wall is not diminished thereby, and to ventilate into the said passageway by any proper means, if they do not thereby create a nuisance so as to interfere with the enjoyment by the plaintiffs and their tenants of the premises occupied by and belonging to them”; (second) that the defendants have no right to maintain bars, brackets, fans, signs, cornices, on any portion of their building northerly of the centre line aforesaid; and (third) that the defendants “shall not by themselves, their tenants or agents, maintain the revolving fan in said bill described in any way which shall cause a current of heated or impure air, or air charged with offensive smells, to strike upon or enter the opposite window of the plaintiffs.” , From this decree an appeal was taken by the defendants, and the plaintiffs took an appeal from so much of it “ as limits the injunction against discharging a current of air upon or into the plaintiffs’ premises to -a current of 6 heated or impure air, or air charged with offensive gases.’ ” The defendants have attacked the third clause only of this decree. Their contention is: “ (1) That if the operation of this fan is to be restrained as a nuisance upon this bill and without further hearing, the record should be amended so as to leave no [397] doubt as to the ground upon which the decision rests. (2) The decree restraining the operation of the fan cannot be sustained on grounds of nuisance. (3) It cannot be sustained on grounds of trespass.” The bill went both on the ground that the current of air was a trespass and that it was a nuisance. From an inspection of the memorandum of decision (as to which see Cohen v. Nagle, 190 Mass. 4) and the decree, it is plain that the decree is founded on the ground that the current of air sent into the plaintiffs’ store was a nuisance. The defendants’ first contention is that the decree cannot stand on the ground of nuisance because that would make the bill multifarious, since it proceeded on the ground of trespass with regard to this current of air and in seeking to have the bar, brackets, signs and cornice removed. It is enough to say of this contention that if that would have made the bill multifarious that objection was waived by the defendants when they went to a hearing on the merits. Crocker v. Dillon, 133 Mass. 91. Pickett v. Walsh, 192 Mass. 572, 579. The second contention is that to cause a current of air to “ strike upon . . . the opposite window of the plaintiffs ” cannot be a nuisance. To “ cause a current of heated or impure air or air charged with offensive smells to strike upon . . . the opposite window of the plaintiffs ” is a nuisance if the plaintiffs elect, as they have a right to elect, to keep the window open. So far as the plaintiffs’ appeal is concerned, there is nothing before us from which we can say that the judge was wrong in coming to the conclusion, that the defendants’ right of ventilation included the right to project into the passageway pure air. For all we know, the evidence before him which is not before us justified that conclusion. No argument has been made on the appeal in the second suit. Becrees affirmed.