Hersey v. Chapin

| Mass. | Oct 18, 1894

Knowltojst, J.

In this case the jury found specially, from evidence a part of which is not reported, that the defendants, acting as a board of health, established and used the plaintiff’s premises as a hospital. This they could not lawfully do without the consent of the owner, except under a warrant issued in accordance with the provisions of Pub. Sts. c. 80, § 43. The finding of the jury, therefore, establishes, for the purposes of this case, the proposition that the defendants acted without lawful authority, and that they are therefore liable to any person who suffered damage in his property from their unlawful act. Spring v. Hyde Park, 137 Mass. 554" court="Mass." date_filed="1884-09-29" href="https://app.midpage.ai/document/spring-v-inhabitants-of-hyde-park-6421405?utm_source=webapp" opinion_id="6421405">137 Mass. 554. Brown v. Murdock, 140 Mass. 314" court="Mass." date_filed="1885-11-07" href="https://app.midpage.ai/document/brown-v-murdock-6421832?utm_source=webapp" opinion_id="6421832">140 Mass. 314, 317.

The plaintiff was not in possession, and had no right of possession, of the property used, and he cannot maintain an action of trespass guare clausum fregit. Bascom v. Dempsey, 143 Mass. 409" court="Mass." date_filed="1887-01-10" href="https://app.midpage.ai/document/bascom-v-dempsey-6422305?utm_source=webapp" opinion_id="6422305">143 Mass. 409. Gooding v. Shea, 103 Mass. 360" court="Mass." date_filed="1869-11-15" href="https://app.midpage.ai/document/gooding-v-shea-6415921?utm_source=webapp" opinion_id="6415921">103 Mass. 360. Woodman v. Francis, 14 Allen, 198. But the declaration contains counts for an injury to the reversion, and the question is whether there was evidence to warrant the finding that there was such an injury.

The tenants in possession were only tenants at will, and the plaintiff as owner could terminate their respective tenancies at short notice. If he wished so to do, the fact that the premises' had been used as a hospital for patients sick with small-pox might naturally diminish their rentable value. In that way the plaintiff’s right may have been affected to his detriment.

It appears that one of the tenements became vacant a few months after the guard was removed from the house, and there was evidence that applicants for the tenement objected to hiring it on learning that small-pox had been in the building. The jury might well find that the plaintiff suffered damage in this way.

The tenant at will in possession could not, as against the rights of the owner, authorize the defendants to establish a hospital for patients afflicted with an infectious disease in the plaintiff’s house, and tó maintain such a hospital there to the damage of the reversion. An attempt to do that would have been a violation of the owner’s right which would have justified him in treating the tenant as a trespasser. Chalmers v. Smith, 152 Mass. 561" court="Mass." date_filed="1891-01-06" href="https://app.midpage.ai/document/chalmers-v-smith-6423645?utm_source=webapp" opinion_id="6423645">152 Mass. 561.

We are of opinion that the rulings requested were rightly refused, and that the instructions given were correct and sufficient. ’ ¡Exceptions overruled.