Thе plaintiff Weltshe owns and operates a hotel known as the Wolfe Tavern, which is locatеd upon the southwesterly corner of State and Harris streets in Newburyport. With certain interruptions, this hotel has been conducted since 1812, although since the last war it has been operated only during the summer months of each year. The other plaintiffs own property and live in the neighborhood contiguous to the hotel. The defendants are copartners engaged in the general trucking business, and maintain a freight terminal on premises located on the southerly side of Harris Street аnd abutting upon the rear
The business of the defendants, which began at the Harris Street location in 1943, has grown to substantial proportions. They transport merchandise of any size and description all over New England, employing thirteen trucks, four of which are eight ton trucks of the tractor and trailer type. The rеmaining trucks are of three to five tons capacity. Their employees report for work at seven o’clock in the morning, taking out the delivery trucks which have been loaded during the prеceding night and in the course of their work picking up other merchandise which is transported to the Harris Street terminal for sorting and subsequent delivery. The employees of the defendants start work аt the terminal between five in the afternoon and eight o’clock in the evening, unloading trucks, sorting the merchandise, and loading trucks for delivery to different localities the next day. This work causes “shаrp reports of colliding metal merchandise, the dull thud of heavy objects propelled tо their consigned places, the rattle of chains and a variety of other sounds incidental tо the wholesale handling in a condensed area of a multiple variety of merchandise.” Thеse sounds are accompanied by noises arising from the changing of the positions of the trucks, including the starting of the motors, the grinding of gears, the occasional backfire and the rasping sounds arising from the engaging and disengaging of the tractors from the trailers of the big trucks. The voices of thе men at work are also clearly audible above the noisy clamor. The master found upоn all the evidence that this confusion of sounds “assume^s] the character of a harmful and pеnetrating din amply adequate to interfere during the night with the rest, comfort and sleep of an ordinary person in ordinary health,” and that all the plaintiffs except the two Roches have been so affected. He further found that the volume of noise would not be reduced so as not to interfere with the rest and
The conclusions of the master are based upon evidence which is not rеported and also upon his subsidiary findings which do not appear to be inconsistent with his general findings, аnd we are bound to accept these general findings as true. Morrison v. Morrison,
The hotel and the freight terminal are located at the boundaries of a district zoned for business and adjoin a district zoned for residences in which all the plaintiffs have their homes. The fact that the operation of certain kinds, of commercial enterprises is permitted under a zoning ordinance is an important fаctor in determining whether the use being made of the land in conducting a particular enterprisе goes beyond what is reasonable in view of the nature and character of the locality, the effect of the use upon those who live in the neighborhood, and the strength and force appropriately due to the various conflicting interests usually involved in the subject matter. But a zoning ordinance affords no protection to one who uses his land in such a manner as to constitute a private nuisance. Marshall v. Holbrook,
The master’s report plainly demonstrates that the defendants in their operation of the freight terminal at night in the manner found by him were making an unreasonable use оf their premises and were maintaining a nuisance. Stevens v. Rockport Granite Co.
The final decree is reversed, and instead a decree is to be еntered in favor of 'the plaintiffs enjoining the defendants
So ordered.