274 Mass. 380 | Mass. | 1931
This is a petition for a writ of mandamus by which it is sought to have the respondent Henkel, inspector of buildings of the town of Wakefield, revoke a permit granted to the respondents Henry A. Morgan and Buth W. Morgan for the erection of a certain building upon their premises in said town, and to institute and prosecute proceedings to cause the removal of the building.
The case was referred to an auditor who found the following and other facts: The petitioner is the owner of an estate in Wakefield and Stoneham adjoining land of the respondents Morgan. A zoning by-law was adopted by the town of Wakefield November 10, 1925. Building by-law art. 10, § 1, is as follows: “No building, structure, or foundation . . . shall be constructed or altered without a permit and such work shall be done in accordance with drawings or descriptions bearing the approval of the Building Inspector.” By the zoning by-law, § 1, the town was divided into four classes of districts, one of
The land of the petitioner and of the respondents Morgan is in a single residence district under the by-law. The respondent Henry A. Morgan started the building of a hen house September 6, 1930, and at the time of the hearing before the auditor it was nearly completed. Its dimensions are substantially as described in the application, namely, one hundred forty-four feet by twenty-four feet; it was housing nine hundred thirty pullets, the total capacity being one thousand. It is surrounded by an apple orchard of full grown trees, and is located about two hundred feet directly in the rear of the Morgans’ house. The intervening space is taken up with an orchard and two much smaller hen houses. The cost of the building in question was over $1,500. The Morgans’ whole estate consists of eighteen acres, fourteen of which are located in the adjoining town of Stoneham. The previous owner had operated this and other land as a poultry and general farm, and had kept between five hundred and one thousand hens. He sold the land now ■owned by the Morgans to them in 1929, together with twenty-nine hens. After the purchase of the property Henry A. Morgan began to expand the business of raising chickens and at the time of the hearing before the auditor had about three thousand, most of which were kept in the hen house in question. The auditor further found that he has continued harvesting and selling the apple crop, and has plowed four or five acres for cultivation and that most of the feed for the hens is purchased by him.
The petitioner made certain requests for rulings which, in substance, were that the erection and maintenance of
It is the contention of the petitioner that the building was not to be maintained as an incident to tilling' the soil, but was for the purpose of carrying on a commercial enterprise within the meaning of the zoning law; that the hen industry is not incidental to farming when the farming is incidental to the hen industry. We are of opinion that, upon the evidence, the premises of the respondents Morgan are a farm which is being lawfully conducted by them in the raising of poultry; that such use of their premises is a permitted use under § 2 of the by-laws. There was evidence which justified the findings that in addition to the raising of hens and the production of eggs the respondent Henry A. Morgan sold hens and eggs; that his receipts from the sale of eggs alone were between $100 and $125 per month, and from the sale of poultry were much greater; that these respondents have upon their premises one hundred twenty-five apple trees; that in 1929 they sold apples and pears for about $468; that they plowed and cultivated five or six acres and raised and sold vegetables of various kinds in the market. The finding that the premises constituted a farm was amply supported by the evidence. In common speech a farm is understood to be one or more tracts of land devoted to agricultural
As the petitioner failed to show that the premises of the respondents Morgan were not a “farm,” the rulings requested were rightly refused; he was not entitled to the issuance of the writ. It follows that as matter of law the petition cannot be maintained and the judge correctly so ruled.
Exceptions overruled.