237 Mass. 56 | Mass. | 1921
This is a bill in equity, brought under R. L. c. 75, § 141, to enforce an order of the board of health of the town of Mansfield. The following facts appear in the master’s report.
The defendant owns a tract of land comprising about four acres. Three acres of this, on which are its buildings, are high ground; the rest is low and wet swamp land. The defendant also has acquired from the owner of an adjoining portion of the swamp the right to let waste water from its premises flow upon and through his land along the line of natural drainage. From this swamp a small natural stream flows into the “Rumford River.” Within a short distance from the premises are located a chocolate refinery employing about four hundred persons, a bleachery employing about one hundred persons, a small plant for waterproofing paper and seven dwelling houses.
The defendant is engaged in the manufacture of certain chemical products, principally lactic acid and chrome alum, and employs some fifty persons. Up to August, 1918, the water used in its operations, and discharged into the swamp, contained some acid and a large amount of solid residue consisting of calcium sulphate and the unfermentable portions of organic raw material. As a result certain chemical changes there took place, a foul smelling sediment was deposited, and hydrogen sulphide gas was given off, causing serious discomfort to persons in the neighborhood by its strong and offensive odor. In August, 1918, the chemical company discontinued discharging solid waste directly into the swamp, and until February, 1919, caused the same to be carted to a sludge pile near the southwesterly border of the premises. The odor was thereby somewhat diminished, but continued to be offensive and disagreeable.
In the summer of 1918 the board of health brought to the attention of the State department of health the alleged nuisance on the defendant’s premises. After a hearing, the State department on September 17 sent to the defendant a notice under R. L. c. 75, § 109, ordering it to desist from operating its plant. This order was suspended by a notice dated September 24, and no further
The cause was referred to a master; and after a hearing on his report the Superior Court entered a decree dismissing the bill, with costs. The case is before us on the plaintiff’s appeal from this decree.
The notice to the defendant recited that the board of health were acting by virtue of the authority vested in them “under Chapter 75 of the Revised Laws,” without specifying under which of the numerous and diversified sections of that comprehensive statute. Although the notice stated that the “nuisance” was due to the discharge of waste material "resulting in the excessive pollution of the water,” plainly they were not acting under §§ 112
R. L. c. 75, § 141, under which the plaintiff has instituted the present suit, provides that the Supreme Judicial Court or the Superior Court “shall have jurisdiction in equity, upon the application of the board of health of a city or town, to enforce the orders of said board relative to the public health,” etc. As above stated, the order which the plaintiff seeks to have enforced was issued under § 67 of the statute, which deals with the removal of “any nuisance, source of filth or cause of sickness found” on private premises. Neither in the adjudication of the board, nor in the order issued is there any declaration that a “ source of filth” or “cause of sickness” existed on the premises of the defendant. See Kineen v. Lexington Board of Health, 214 Mass. 587. In fact there is no finding that a “source of filth” existed at any time. And the master expressly reports, “I do not find that any cause of sickness has ever been traced to any gas or odor arising from the swamp, and do not find that the gas or odor at the present
The plaintiff argues that the words “relative to the public" health,” in § 141, should be given a broad and liberal construction. But under any reasonable construction of that language, we cannot say in the light of the facts disclosed by .this record, that the trial judge was wrong in refusing to enforce the order in question under the summary provisions of R. L. c. 75, § 141. See Miller v. Horton, 152 Mass. 540. This conclusion renders it unnecessary to consider the other objections raised by the defendant.
Decree affirmed with costs.