Cremidas v. Fenton

Braley, J. The master not having been ordered to report the evidence, his findings of fact are final. Taber v. Breck, 192 Mass. 355. But, as he found "that the defendants are committing no nuisance in the operation of the machinery in their factory and that the plaintiff is not entitled to the relief sought,” the plaintiff excepted to the master’s report on the ground that this result is not sustained by the facts reported. It appears that the neighborhood where the plaintiff’s house and the defendants’ factory are located is grouped around the edge of what was formerly known as “bog meadow,” covering many acres. The section is not wholly residential, but of a mixed character consisting of factories, stores and residences, one of which the plaintiff owns and occupies as a dwelling house. It is found that he and his wife have been affected in some degree not only by the noise, but by the vibration of the house caused by the defendants. But the operation of the factory being lawful, and the master [251] upon all the facts reported being convinced that the noise would not be unbearable or injurious to the health of a normal person, no substantial injury warranting' the assessment of damages or the issuance of an injunction closing the factory on this ground is shown. Wade v. Miller, 188 Mass. 6, and cases cited. Stevens v. Rockport Granite Co. 216 Mass. 486. It is, however, urged that the plaintiff is entitled to relief for the annoyance and physical effect upon himself and wife and to damages for injury to his property arising from the vibration and jarring of the house in so far as attributable to the defendants’ acts. While the fact found by the master, that the passing of heavy wagons or trucks in the street caused the house to oscillate, would be no justification for the defendants, because the public have a right to use the streets and abutters must suffer the annoyance of passing vehicles, yet he also found that the age and unsubstantial construction of the house are such, “that it would shake or jar . . . even by a person walking across the floor” and that this condition is unavoidable unless all operation of the machinery is suspended. If these findings did not appear, we should hesitate to say that of itself the mere character of the soil, which furnishes an unusually susceptible medium for the transmission of the effects of the motive power or mechanical force used at the factory, was sufficient to defeat appropriate relief. MacNamara v. Taft, 196 Mass. 597. Hennessy v. Carmony, 5 Dick. 616. But as the defendants “have installed the most modern machinery of its kind and . . . operate it by the least noisy of motive powers, namely, electricity,” and the circumstances of operation are expressly stated as not being either abnormal or excessive, we cannot say as matter of law that the master’s conclusion is wrong. The exceptions accordingly must be overruled, but the decree should be modified by the taxation of but one bill of costs and when so modified it is affirmed. Ordered accordingly.