O'Keefe v. Sheehan

Pierce, J. Upon a reservation from a judge of the Superior Court, this case is before the full court upon the pleadings, the) master’s report, and the defendants’ exceptions thereto. It is a' bill in equity wherein the plaintiffs seek to have the defendants restrained and enjoined from using or permitting the use of certain premises for stabling horses, or for the purposes of a general contracting business in violation of certain restrictions upon the use of the defendants’ premises, which restrictions the defendants concede attach to their premises and the premises of the plaintiffs, and enure to the benefit of the premises of both plaintiffs and defendants. The plaintiffs also seek a mandatory injunction commanding the defendants to remove such portion of a stable upon the premises of the defendants, as has been erected at a distance of less than three feet from the boundary line of the premises of one of the plaintiffs, in violation of an ordinance of the municipal council of the City of Lynn passed on May 23, 1911. Previous to 1881, one Batcheller owned a tract of land in Lynh, Massachusetts, which by reason of its locality and for other reasons was adapted to residences of the best class, if its availability for such purposes as a tract should be preserved by suitable restrictions. Between 1881 and 1883, he divided this tract into lots and sold certain of them (hereinafter called A, B, and C) to the predecessors in title of the lots now held and occupied by the several plaintiffs and defendants. Each of the original conveyances and all the mesne conveyances in the several chains of title from the first grantor to the last grantee were granted subject to the following restrictions: “This deed is granted upon the conditions . . . that neither the grantee nor her heirs or assigns shall carry on any trade or business upon said lot that shall be in the nature of a nuisance to the abutting owners or neighborhood.” Lots A and B are owned by the plaintiffs. Lot C is owned by one of the defendants. Lot A adjoins lot B, and lot - B adjoins lot C. There is a stable on lót C distant seventy-six feet from lot B and one hundred and eighteen and one half feet from lot A. . When the defendant Mary F. Sheehan took title to lot C, in 1907, the buildings thereon consisted of a dwelling house and a [395] small private barn. Her son, the defendant David J. Sheehan, in 1907 started out to do business for himself, on lot C, as a contractor and builder. Before the license was granted in July, 1907, he kept in the barn two horses; and, during the period covered by the license, three horses. The defendant David J. Sheehan Company was organized in 1908, and took over the business of David J. Sheehan. Sheehan is and always has been the president, treasurer and general manager. It is a family corporation, the stock in which is owned almost entirely by David J. and his wife. Between 1908 and 1912 inclusive, under a municipal license the barn was from time to time enlarged until in 1912 it and the extensions made a barn one hundred and seventy feet long by thirty-two feet wide. Within the same period" under municipal licenses, the number of horses kept on the premises increased from three to about sixty. The master reports at great length the conditions under which the business of the defendants was carried on before the stable was burned on December 27, 1915. These conditions manifestly were calculated to cause a material and substantial disturbance and annoyance to the plaintiffs as owners and occupiers of the adjoining lands, and fully warranted the master in his conclusion of fact “that for some time before the Sheehan stable was burned it had been a source of annoyance and discomfort to the O’Keefes living next door and to the O’Keefes living at 414 Broadway by reason of offensive odors and the pounding of horses and the presence in unusually large quantities of flies attracted by or bred in the exposed manure stored under the stable.” The defendants properly concede that the conditions of the use of the premises and the actual discomforts and annoyances to the plaintiffs in the use of their property, which naturally flowed therefrom, constituted a private nuisance at common law as well as a violation of the restrictions of their deed, but contend that the business as it was carried on was not a legal nuisance because of the licenses to use the barn as a stable. Murtha v. Lovewell, 166 Mass. 391. Sawyer v. Davis, 136 Mass. 239. Levin v. Goodwin, 191 Mass. 341. Of course this is true if the business or trade licensed cannot be carried on without interfering with the comfort of adjoining owners or neighborhood in the way complained of; but is without force and untrue if the conditions which would amount to a common law nuisance are not attributes of the business, but are the result of [396] its negligent management or, as in the case at bar, are the natural consequences of avoidable unsanitary and illegal conditions. The defendants further contend that the restrictions contained in the several deeds are without effect because the negative easement therein attempted to be created, and attached to all the parcels of land, is a “reservation of no greater right than the law imposes upon every such parcel of real estate in favor of an abutting owner or the neighborhood.” We cannot agree with this argument: there is nothing in the policy of the law which is hostile to the protection of property and property rights, through a covenant or contract which is supplementary and in addition to that protection which the law affords as of right; nor do we think a municipal license to do acts, which without it would create a common law nuisance, nullifies an existing agreement which runs with land not to do acts nor to create conditions which are illegal at common law, in the absence of a legislative or municipal license. • The barn was almost totally destroyed by fire on December 27, 1915. On December 28, 1915, the plaintiffs notified the defendants “. . . that it is the intention ... if an attempt be made to resume said business on said premises or to use said premises in any other manner that would be 'in the nature of a nuisance to the abutting owner and the neighborhood/ to seek a restraining order from the court.” On January 31, 1916, the defendants wrote the plaintiffs as follows: “. . . You are further notified that I intend forthwith to rebuild the stable which was recently destroyed by fire on my said premises, and to use the reconstructed stable for the stabling of horses in the same manner and to the same extent as the business of the David J. Sheehan Company was carried on before said fire.” On February 2, 1916, a municipal license issued to the defendants to build and use a stable for fifty horses upon the premises at 424 Broadway (lot C). On February 14, 1916, immediately after the defendants began the erection of the new stable, this bill was filed. The new stable had been completed and was occupied March 25, 1916. The hearings before the master began on March 27, and ended on June 13,1916. It is not contended that there has been a violation by the defendants of the terms of their license. Upon the question whether the use of the stable was “in the nature of a nuisance” after it was rebuilt and possession taken on March 25, 1916, the [397] master found the evidence "not very complete nor very satisfactory,” and further found that “it could hardly be otherwise.” He noted many improved conditions but found that “only experience will tell whether these improvements will effectually remove the objectionable features of the old stable or not.” He further stated: “It may well be that notwithstanding all the precautions prescribed in the license, the new stable will prove a substantial annoyance to the occupants of the adjoining premises. I cannot see, however, how any one can tell how this will be until a fair trial of the new arrangements is given.” We are of opinion the plaintiffs are not prevented from maintaining this suit by their loches, their waiver or acquiescence, but we are constrained to the opinion that the negative findings of the master which resulted from his inability to determine upon the evidence whether the use of the premises within the short interval of time that had elapsed between the occupation of the new stable and the hearing was a nuisance or a use in the nature of a nuisance make it imperative, in the opinion of a majority of the court, that an injunction should not now issue and require that the bill should be dismissed without prejudice and without costs. An ordinance of the city of Lynn passed on May 23, 1911, provided that “No tenement or dwelling house or other building outside fire limits and more than ten feet in height shall be erected, altered or located on a lot so that any part of same including cornice, bay window, porch or other projection shall be within three feet of said lot lines or any adjoining lot lines. ...” It was found by the master that the stable was outside the fire limits, was more than ten feet in height, and was within three feet of the plaintiffs’ lot line. It was rebuilt and altered, and was not repaired as the defendants contend. It therefore was a statutory nuisance to the extent it was rebuilt, erected and altered in violation of the ordinance. Worcester Board of Health v. Tupper, 210 Mass. 378. The defendants contend that the plaintiffs have no “standing to enforce this municipal police regulation.” The question whether the remedy by fine or in equity is a purely public remedy is settled in this Commonwealth by Hagerty v. McGovern, 187 Mass. 479, wherein, in a suit in equity to restrain the owner of land from building a house within three feet of the boundary line of his lot in [398] violation of a city ordinance, it was said by Barker, J., at page 480: “The erection upon it of structures which in themselves are not noxious or unusually dangerous is not a use in violation of the private rights of an adjoining owner, even if in some degree the enjoyment of the adjacent land is made less complete or beneficial than if the land were bare. The breach of the ordinance by the defendant is not an invasion of the plaintiff’s private right. All the injurious results of the erection of the defendant’s building come not from his violation of the ordinance, but from the use of his land for building. The plaintiff shows no peculiar damage due to the breach of the ordinance, and no right to have private relief because of its violation. See Jenks v. Williams, 115 Mass. 217.” Rudnick v. Murphy, 213 Mass. 470, 471. The fact that the business carried on upon the premises in Wright v. Lyons, 224 Mass. 167, was a common law nuisance unless legalized by a municipal license, distinguishes that case from Hagerty v. McGovern, supra, and the case at bar where the nuisance, if any there was, is predicated solely upon a violation of a municipal ordinance. Dahlin v. Walsh, 192 Mass. 163. Field v. Gowdy, 199 Mass. 569, 573. It follows that the bill upon both issues must be dismissed, without costs and without prejudice. Decree accordingly.