276 Mass. 341 | Mass. | 1931
This suit is brought by several plaintiffs, each of whom owns or occupies property near that of the defendant, seeking to have the operation of the defend
In September, 1929, the defendant purchased a tract of land on Rockdale Street, in Worcester, with a frontage of one hundred twenty feet on the street and a depth of one hundred forty-four feet, the easterly boundary line being upon the right of way of the Boston and Maine Railroad. Upon this land near the street line the defendant erected a building for use as a drop forge plant and installed appropriate machinery, including two drop hammers, investing in the property $35,000. The building is forty feet in width, sixty-five feet in length, and one story in height. The westerly portion, which is nearest the street, is constructed of bricks. The side walls are in part of brick and there is a partition of the same material across the building. The bricked in portion is used for a machine shop and contains ordinary machinery of such a shop creating no noticeable noise or vibration. The remainder of the building is constructed of corrugated iron. The two drop hammers are located in the forge shop where there are a trimming press, forging machine and two furnaces. To operate the hammer the operator pushes down a pedal, and so long as it is held down the ram rises and falls. Blows are struck at intervals of one second. Commonly ten to fifteen consecutive blows are struck. Each impact of the ram on the base makes noise and eafises some vibration. The operation of the remaining part of the forge shop equipment creates no noise or vibration appreciable in the houses of the plaintiffs. The operation of the large and small hammers began in January or February, 1930, and has continued intermittently since. The noise of the” large hammer at a distance of one mile sounds like the pounding on a piece of steel with a hand hammer by some one in the next room with the door closed. In the plaintiffs’ houses the noise is loud and disagreeable. It is a heavy thud with a metallic clang. The hammers cannot be operated without noise, and there is no known way of muffling or lessening it. The defendant’s plant is properly built and nothing has been omitted which might lessen the noise. The material of which it is constructed and its
The neighborhood is of a mixed residential and industrial character; other large manufacturing plants are located there, some of which have been there many years. One of them contains a large drop hammer, but not a board hammer. The location and the accessibility of the railroad make the land adjoining it appropriate for manufacturing purposes and less appropriate for residential purposes. The westerly side of Rockdale Street and the region beyond in the same direction are exclusively residential, devoted mostly to houses occupied by owners.
On December 29,1924, the city council of Worcester, under G. L. c. 40, § 25, adopted a zoning ordinance which divided the city into districts classified respectively as residence “A,” “B” and “C” districts, business districts and industrial “A” and “B” districts. The defendant’s plant and the plaintiffs’ houses are in an industrial “A” district. A drop forge plant in this district violates no provision of the zoning ordinance, although certain specified industries are excluded from it which are permitted in the unrestricted industrial “B” district.
The master found “If the adoption of this ordinance as a matter of law impresses upon the neighborhood the character of an industrial district so that it has lost entirely any character of a residential district, then the defendant’s plant does not constitute a nuisance. If the adoption of this ordinance and the issuance of the permit above referred to constitutes a legislative sanction to the defendant to build, occupy and operate a drop forging plant in this location, then I find that his plant is being conducted without negligence and without unnecessary disturbance of the rights of others and is not a nuisance. If the adoption of this ordinance is inoperative to change the actual character of the neighborhood in the eyes of the court or if this ordinance is not in the nature of a license to the defendant to operate a plant of this character, then I find that the operation of the defendant’s plant because of the noise and vibration which it causes is a nuisance. I find that the value and the rental value of the plaintiffs’ properties have been reduced by the operation of the defendant’s plant. I am unable to find by what amount and can therefore make no findings as to damages.”
The trial judge ruled upon the facts found by the master that the adoption of the zoning ordinance referred to in the master’s report does not entirely change the character of the neighborhood so as to impress the character of an industrial district upon it and to take away entirely its character as a residential district; that the adoption of the ordinance does not act as a license in such a manner that what the defendant does thereunder cannot be considered a nuisance or be restrained even if without such license the acts done would be
The question whether a nuisance exists is ordinarily one of fact and it is not contended that the master was wrong in his conclusion that apart from rights growing out of the zoning ordinance the operation of the hammers in the defendant’s plant was a nuisance. A person may be protected by statute or by license issued under an ordinance enacted with legislative sanction in doing an act or conducting a business which apart from such authorization would be a nuisance. In Commonwealth v. Parks, 155 Mass. 531, 532, the court said: “It is settled that, within constitutional limits not exactly determined, the Legislature may change the common law as to nuisances, and may move the line either way, so as to make things nuisances which were not so, or to make things lawful which were nuisances, although by so doing it affects the use or value of property.” In Levin v. Goodwin, 191 Mass. 341, 343, the court said: “Nor can there be any doubt that a person carrying on a business may be licensed to make a noise, which but for the license would be a nuisance.” In Davis v. Sawyer, 133 Mass. 289, the ringing of a factory bell for the purpose of arousing the operatives was held to be a private nuisance. Following this decision the Legislature by St. 1883, c. 84, authorized manufacturers and others employing men to ring bells and use whistles and gongs of such size and weight and in such manner and at such hours as the board of aldermen of cities or the selectmen of towns may in writing designate. The same manufacturer who had been found to have violated the law by ringing the bell was authorized by the selectmen in pursuance of the statute to ring the
The question to be decided is whether the owner of an important industry like that of the defendant, which when properly conducted creates a nuisance, may locate in a district where, according to the zoning ordinance, such an industry is not excluded, and thereby gain the same kind of protection in carrying on the industry that he would have if authorized by statute or by license in pursuance of a valid ordinance to conduct the business in that place.
Article 60 of the Amendments to the Constitution of the Commonwealth provides that “The general court shall have power to limit buildings according to their use or construction to specified districts of cities and towns.” In Opinion of the Justices, 234 Mass. 597, 611, it is stated that “The segregation of manufacturing, commercial and mercantile business of various kinds to particular localities, when exercised with reason, may be thought to bear a rational relation to the health and safety of the community.” In Inspector of Buildings of Lowell v. Stoklosa, 250 Mass. 52, 60, the power of a municipality to divide its territory into business and residential districts was recognized. By the terms of the zoning ordinance in question buildings for the purpose of any trade, business, or industry of any kind “that is noxious or offensive by reason of . . . noise, or vibration” are expressly prohibited in the business district. Over twenty specified industries are excluded from industrial “A” district. Under this zoning ordinance the beneficial results of the segregations therein provided for are sought to be accomplished by processes of exclusion of certain kinds of buildings or certain uses of buildings from
The bill alleged that the operation of the defendant’s plant had caused damages to the plaintiffs. We interpret the master’s finding that the value and the rental value of the plaintiffs’ properties have been reduced by the operation of the defendant’s plant, but that he was unable to find by what amount, and his statement that he makes no finding as to damage, to mean that the plaintiffs had failed to introduce evidence upon which he could make a finding as to the amount of their damages. The plaintiffs having failed in their proof on this issue at the hearing before the master are not entitled to have the right reserved to bring actions at law to recover the same or to have a further hearing on the same issue in this suit. The order for a decree must be reversed and a decree entered enjoining the operation of the two drop forge hammers in the defendant’s building in such a manner as to cause a substantial interference with the reasonable comfort and enjoyment of life of the respective plaintiffs in the occupation of their homes, or in such a manner as to cause substantial injury to their property.
Ordered accordingly.