302 Mass. 530 | Mass. | 1939
This suit, originally brought against the city of Fall River as well as The Carey Construction Company for injunctive relief against an alleged nuisance and also for damages, is now, after the cessation of the nuisance, prosecuted against the construction company alone for the recovery of damages.
The defendant is the owner of an abandoned quarry “of considerable area and great depth,” located in a sparsely settled section near the boundary of the built-up portion of the city. Prior to 1927 this quarry had been used as a dump. In 1927 the defendant gave the city’s superintend
As early as the summer of 1928 the dump had become infested with a species of cockroach not native to this section but larger and more active than the native cockroach and having the power of flying as well as of crawling. These insects were active during the warm summer months, and at those times they spread over the adjoining land and into the yards and houses owned by the plaintiff in the vicinity of the dump. In increasing degree each year they became a source of discomfort to the plaintiff’s tenants and adversely affected the rental value of her property, causing her damage.
From the foregoing and other findings of the master there would seem to be little difficulty in reaching a conclusion that the dump, considered merely as the breeding place of a noxious pest, was sufficiently harmful to the plaintiff and lacking in reasonable justification from the standpoint of the defendant to fall within the category of a nuisance. Stevens v. Rockport Granite Co. 216 Mass. 486. Cumberland Corp. v. Metropoulos, 241 Mass. 491. Tortorella v. H. Traiser & Co. Inc. 284 Mass. 497. Kasper v. H. P. Hood & Sons, Inc. 291 Mass. 24.
But there remains the question whether the defendant is legally responsible for the creation or maintenance of such nuisance. Upon this branch of the case further findings of the master become material. The dump was properly located and was efficiently supervised and cared for. As a dump (i.e. aside from cockroaches) it was not injurious to the plaintiff’s property. There were no cockroaches there when the defendant gave the city permission to use it. “None of the other city dumps were affected by these pests
These findings show that the plague of cockroaches was not a natural consequence of the permission by the defend
The rule seems to be established that a landowner is not liable, merely because he holds the title, for the consequences of a private nuisance which he did not create, unless he suffers it to continue after notice to abate it or at least after knowledge of its existence. McDonough v. Gilman, 3 Allen, 264. Nichols v. Boston, 98 Mass. 39, 43. Prentiss v. Wood, 132 Mass; 486, 488. New Salem v. Eagle Mill Co. 138 Mass. 8. Hogan v. Barry, 143 Mass. 538, 540. Leahan v. Cochran, 178 Mass. 566, 569. Fuller v. Andrew, 230 Mass. 139, 146. The law is different as to a public nuisance. Fuller v. Andrew, supra. We see no reason why the rule just stated should not apply to a case like this, where an unforeseeable private nuisance arose without the owner’s fault or knowledge, after full actual control of the dump had been given to a proper licensee. Pettibone v. Burton, 20 Vt. 302, 308, 309. McMechen v. Hitchman-Glendale Consolidated Coal Co. 88 W. Va. 633, 636. See Lufkin v. Zane, 157 Mass. 117, 121-122; Moret v. George A. Fuller Co. 195 Mass. 118, 123; Walter v. County Commissioners, 35 Md. 385, 392; Bernard v. Whitefield Tanning Co. 78 N. H. 418, 422. Compare Dalay v. Savage, 145 Mass. 38; Clifford v. Atlantic Cotton Mills, 146 Mass. 47, 49; Anderson v. Kopelman, 279 Mass. 140, 146; Spiker v. Eikenberry, 135 Iowa, 79; White v. Jameson, L. R. 18 Eq. 303.
But after the notice it became the duty of the defendant, as a licensing owner who could resume control at will, to use all reasonable means within its power to abate the nuisance. Rockport v. Rockport Granite Co. 177 Mass. 246. See Gray v. Boston Gas Light Co. 114 Mass. 149, 153; Ainsworth v. Lakin, 180 Mass. 397, 401-402; Hunt v. Lane Brothers Co. 294 Mass. 582, 587. There is, however, noth
There was no error in overruling the plaintiff’s exceptions to the master’s report.
Interlocutory order and decree affirmed.
Final decree affirmed with costs.