Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

he cut ice for family use, on account of the soot and cinders rendering the ice unfit for such use, will not be granted where the findings were that the soot and cinders deposited on the ice from the chimney caused insignificant damage as compared with that resulting from other causes, and that the use of such fuel was more economical for defendant.

2. Under such findings the plaintiff is not entitled to damages.

Case reserved from supreme judicial court, Suffolk county; James M. Morton, Judge.

Suit by Jeremiah R. Downing against William H. Elliott. Reserved for the full court on the pleadings, master's report, and complainant's exceptions. Judgment for defendant.

G. A. A. Pevey and Vere Goldthwaite, for plaintiff. Jas. F. Sweeney and F. M. Forbush, for defendant.

MORTON, J. The plaintiff is engaged in the ice business, and is the owner of a pond in Brighton, from which he cuts ice for family and wholesale trade. The defendant is the owner of a greenhouse near the pond, and heated by steam. Prior to the bringing of the bill he had used soft coal; and the bill alleges that smoke, dust, soot, and cinders were thereby deposited in the plaintiff's pond, and the ice rendered unfit for use. The prayer of the bill is that the defendant may be restrained from using soft coal or other fuel that will interfere with or injure the property or business of the plaintiff, and for the assessment of damages. The case comes before us on the pleadings, the master's report and supplemental report, and the plaintiff's exceptions thereto, so far as they raise questions of law, and the evidence reported by the master; such disposition to be made of the case as law and justice require. The exceptions relate to the matter of damages, and the view which we have taken of the case renders it unnecessary to consider them. The defendant's business is a lawful business, and he has a right to use his premises in any manner that will not interfere with the legal rights of others or violate the law. It cannot be said, we think, that the use of soft coal for the purpose of generating steam of itself constitutes a nuisance, and there is nothing to show that the business is not a proper one to be carried on in that locality, or that it is not carried on in a proper manner. Indeed, there would seem to be few businesses less objectionable than that of growing plants and flowers for sale. But, though the locality is a suitable one, and the business is lawful, and carried on in a proper manner, the defendant has no right to materially contaminate the air that comes to the plaintiff's premises, and injure his business and property, by the presence and deposit of smoke, soot, dust, and cinders. Every one has a right to have the air that comes to his premises come as pure and uncontaminated as can reasonably be expected. In thickly-settled communities absolute purity is out of the ques

tion; and the more thickly-settled the community is, and the more varied are the kinds of business, the more will the atmosphere be unavoidably impregnated with impurities. This is one of the inconveniences, if it is an inconvenience, which every one who lives in a populous neighborhood must suffer. But the fact that the atmosphere is already impure does not justify or excuse a party in adding to the impurity, so as thereby to cause still further discomfort to others, or still further injury to their business or property; and conduct which leads to such a result will constitute an invasion of the rights of the parties injuriously affected thereby. But in these as in other cases an independent wrongdoer is responsible only for the consequences of his own wrongdoing, and not for the acts or conduct of others. The burden of proof is upon the party complaining, and each case must stand on its own facts. No general rules can be laid down that will furnish an infallible guide in all cases. The most that can be done is to indicate the lines along which the decision must proceed. To entitle the plaintiff to relief, the injury of which he complains must be certain and substantial, and not slight or theoretical. The right, as already observed, is not a right to absolute purity, any invasion of which would give a right of action, but it is a right to such a degree of purity as, taking all the circumstances into account, the plaintiff is reasonably entitled to. See Ferrule Co. v. Hills, 159 Mass. 147, 34 N. E. 85, 20 L. R. A. 844; Rogers v. Elliott, 146 Mass. 349, 15 N. E. 768, 4 Am. St. Rep. 316; Smelting Co. v. Tipping, 11 H. L. Cas. 642; Crump v. Lambert, L. R. 3 Eq. 409; Walter v. Selfe, 4 De Gex & S. 315; Fleming v. Hislop [1886] 11 App. Cas. 686; Wood, Nuis. (1st Ed.) § 429 et seq. In the present case the master finds that the ice was unfit and unsuitable for the plaintiff's family trade by reason of black spots resembling soot and cinders embedded in it, and that the black specks referred to had been deposited on the surface, and had sunk into the ice in the process of alternate freezing and thawing; and he says -what is obvious-that the main question in the case is to determine from what source these specks came. Upon that question he finds as follows: "I cannot find that no particles of soot or carbon from the defendant's chimney are deposited on the plaintiff's pond or upon his ice, but I find and report that soot and cinders from the defendant's chimney, caused by the burning of soft coal by him, are only one cause contributing to the specks resembling soot and cinders in the plaintiff's ice, rendering it unfit and unsuitable to be used and disposed of in his family trade. I further find and report, if it is material, that the portion of soot and cinders coming from the defendant's chimney is of small importance in comparison with other causes contributing to injure the plaintiff's ice and render it unfit and unsuitable as aforesaid." These findings are warranted by other facts

[blocks in formation]

is no finding that any unusual or extraordinary volumes of smoke issued at any time from the defendant's chimney; and the fair import of the master's findings is, it seems to us, that, while he cannot say that no soot and cinders from the defendant's chimney were deposited on the plaintiff's ice, if any were deposited they contributed only slightly, if at all, to the injury to the ice, and the damage done by them was insignificant as compared with that resulting from other causes. He further finds that, while the use of soft coal is not a necessity in carrying on the defendant's business, it is more economical, and saves him between $400 and $500 a year. If, therefore, an injunction should issue as prayed for, it not only will not afford the plaintiff the relief which he seeks, but will inflict great and unnecessary injury on the defendant. As the case stands, we do not think that the plaintiff is entitled to an injunction. Neither do we think that he is entitled to damages. If the alleged injuries are too slight and uncertain to be ground for an injunction, we do not see how they can be made the basis for an assessment of damages.

dict for defendant, plaintiff brings exceptions. Overruled.

Crosbly & Noxon, for plaintiff. Brooks & Hamilton, for defendant.

MORTON, J. As the plaintiff went to pass through a passageway between two machines, on one of which he worked, in the defendant's mill, he slipped, and, to save himself from falling, threw out his hand, and it was caught in the gears of one of the machines and injured. This action is brought to recover for the injury thus sustained. At the time of the accident the plaintiff was between 14 and 15 years old, and had worked about two months on the machine on which he was working when injured. A few minutes before the accident he had started to go to the water-closet, passing on his way between these two machines, and had reached the stairs, when he turned back to speak of his intended absence to a man in the room whom he was required to notify of the absence. He went back the same way that he had come, and it was while going back that he met with the accident. There was testimony tending to show that the slipping might have been caused by oil on the floor. There was also testimony tending to show that the place where the plaintiff slipped was not lighted. The plaintiff contends that the defendant was negligent in these respects, and that his Injury was caused thereby, and also that the defendant was negligent in not instructing him as to the danger of using the passageway.

If the slipping was caused by oil on the

The result is that we think that the bill floor, and was not a pure accident, there is should be dismissed. So ordered.

(181 Mass. 560)

DENE V. ARNOLD PRINT WORKS. (Supreme Judicial Court of Massachusetts. Berkshire. June 17, 1902.)

MASTER AND SERVANT-PERSONAL INJURIES -WARNING OF DANGER-NEGLIGENCE. 1. An operator in a mill, familiar with the machinery and its surroundings, slipped while passing between two machines, and threw out his hand to save himself from falling, and it was caught in the gears of one of the machines. There was evidence showing that the slipping might have been caused by oil on the floor, and that the place was not lighted. Held, that the mere presence of oil on the floor and absence of light was insufficient to hold the mill company liable for negligence.

2. A mill company was not negligent in failing to warn an employé of danger of slipping, or of getting his hand caught in the gears, in using an unlighted passageway between two machines.

Exceptions from superior court, Berkshire county; Daniel W. Bond, Judge.

Action by Ignes Dene, by next friend, against the Arnold Print Works. From a ver

nothing to show how long the oil had been there, or what caused it to be there. It would be holding parties to a liability altogether too strict to say that the presence of oil on the floor of a mill was itself evidence of negligence. Regard must be had to what is practicable and reasonable, and it would hardly be possible to operate a mill without more or less oil getting on the floor, especially under and around different machines. We do not see how the absence of light can be said to bave caused the injury. The plaintiff went through the passageway on his way to the stairs, and it was then unlighted, and was so when he returned. His familiarity with the machine and its surroundings was such that he needed no artificial light. Moreover, if there was negligence on the part of any one in not lighting the gas, it would seem that it was the negligence of a fellow servant, and not of the defendant, or of one whose sole or principal duty was that of superintendence. It is manifest, we think, that the plaintiff needed no warning or instruction as to the danger, if any, in using the passageway, or of getting his hand caught in the gears.

Exceptions overruled.

[blocks in formation]

Exceptions from superior court, Worcester county; Jabez Fox, Judge.

Will contest between one Judge and one Ratigan, executor. Appeal from decree allowing the will. Will sustained, and contestant excepts. Exceptions overruled.

The court excluded evidence taken by deposition in answer to the question, "Was he [testator] subject to delusions and hallucinations?" The deponents had known the testator for some years, but only as acquaintances, and were not experts,-simply common observers.

Wm. C. Mellish and Gardner K. Hudson, for appellant. John B. Ratigan, Herbert Parker, and Robt. P. Esty, for executor.

BARKER, J. The question, "Was he subject to delusions or hallucinations?" required of the deponent an opinion upon the mental condition of the testator. See Clark v. Clark, 168 Mass. 523, 47 N. E. 510, and cases cited. Exceptions overruled.

(181 Mass. 565)

CITY OF CAMBRIDGE v. TRELEGAN. (Supreme Judicial Court of Massachusetts. Middlesex. June 17, 1902.)

HEALTH - SLAUGHTER HOUSES POWER OF BOARD OF HEALTH TO PROTECTEFFECT OF LICENSE.

Pub. St. c. 80, § 84, provides that the board of health of a town shall assign certain places for the exercise of any trade which is a nuisance or dangerous to the public health, or attended by injurious odors, and may prohibit the exercise of such a trade in places not so assigned, or within the limits of the town, or in any particular locality thereof, and that all such assignments may be revoked where the board thinks proper. St. 1894, c. 491, § 18, as amended by St. 1895, c. 496, § 4, requires slaughter houses to procure licenses from the board of aldermen, designating the location of the slaughter houses, etc. Held, that in view of Pub. St. c. 80, § 93, expressly empowering the state board of health to prohibit the slaughtering of animals in any building used for that purpose, the possession of a license from the board of aldermen to conduct a slaughter house at a certain place is of no avail against an order of the town board of health prohibiting the exercise of the trade at the place named in the license.

Report from supreme judicial court, Middlesex county; James M. Morton, Judge.

Suit by the city of Cambridge against one Trelegan, reported from the supreme judicial court. Decree for plaintiff.

W. Rodman Peabody and Gilbert A. A. Pevey, for plaintiff. Freeman Hunt, for respondent.

HOLMES, C. J. This is a bill in equity to restrain the defendant from carrying on the business of slaughtering calves at number 20 Clay street in Cambridge. The defendant has a license from the board of aldermen under St. 1894, c. 491, § 18, as amended by St. 1895, c. 496, § 4, and the only question raised or argued is whether this license is good as against a prohibition by the board of health of the city under Pub. St. c. 80, § 84.

The act of 1894 did not have in mind all the objects which are to be considered by a board of health. It was intended to stop the spread of contagion and the sale of diseased meats, but the welfare of the neighborhood of a slaughter house in other respects hardly seems to have been within its scope. This is a board of health's ordinary business, and the mere fact that a license from the mayor and aldermen or selectmen was required by the act of 1894 to carry out its purposes is not enough to put an end to the power of boards of health to secure the public health in other respects. The requirement of the license in St. 1894, c. 491, § 17, is consistent with their power to forbid the continuance of a slaughter house in a certain place. court does not regard the difficulty as increased by St. 1897, c. 428, § 2, now taken up into Rev. Laws, c. 75, § 99. That statute substitutes a license from the board of health for a license from the selectmen in towns of more than five thousand inhabitants, but leaves the effect of such a license as it stood under St. 1894.

The

From its origin the policy of requiring the license mentioned has been shown not to be exclusive of the exercise of their usual powers by boards of health by the express grant of power to the state board of health to prohibit carrying on the business of slaughtering in a building or premises occupied for that purpose. St. 1871, c. 167, § 2; St. 1874,

c. 308; Pub. St. c. 80, § 93; Rev. Laws, c. 75, § 109. The court is of opinion that this grant of power is not exclusive and that it would be unwarranted and anomalous to hold the license good against the local board acting under Pub. St. c. 80, § 84 (Rev. Laws, c. 75. § 91), when it would be no answer to the state board acting under what is now another section of the same chapter of the Revised Laws. See Sawyer v. Board, 125 Mass. 182. 191, 192; Stone v. Heath, 179 Mass. 385, 60 N. E. 975.

Decree for plaintiff.

(181 Mass. 562)

NICKERSON v. VAN HORN et al. (Supreme Judicial Court of Massachusetts. Suffolk. June 17, 1902.) WILLS-TRUST-RIGHTS OF CREDITORS. By a will property was devised to trustees. to pay over the net income to testator's grand

daughter quarterly during her life, into her hand, or on her sole and separate receipts or orders therefor, signed by her at or immediately before the payment, and not by way of anticipation. If the trustees saw fit, they could permit her to collect to her own use the income, or could apply the net income, or so much as they saw fit, to her individual support and that of her children; any unexpended portion of the income after her death to be paid to her children. By the will certain annuities were to be paid to her by such trustees in the same manner, and under the same conditions except that relating to accumulations. Held, that she had no such interest in the income and annuities, prior to the money coming into her hands, as could be reached by her creditors.

Case reserved from supreme judicial court, Suffolk county; James M. Barker, Judge.

Action by George A. Nickerson, executor of the will of Albert W. Nickerson, against Harriet J. Van Horn and others. Case reserved to the full court. Bill dismissed.

Charles E. Hellier, for plaintiff. Charles K. Cobb, for defendants.

KNOWLTON, J. The plaintiff seeks to reach and apply in payment of a debt the interest of the defendant Harriet J. Van Horn as a cestui que trust under the seventh article of the will and the fourth and fifth articles of the codicil to the will of her grandfather, John Simmons. The question as to each of these legacies is whether it is an absolute gift, of which this defendant has the power of alienation, and which is subject to be taken by her creditors for her debts, or whether, under the trust, it is put beyond her control, except to use it as it is paid to her when due, and beyond the power of her creditors to have it appropriated to the payment of her debts. By the decisions in Bank v. Adams, 133 Mass. 170, 43 Am. Rep. 504, and the numerous cases that have followed it, it has been held that a testator may create a trust for life by which the beneficiary shall receive payments from time to time, which shall not be subject to alienation, or be liable to be taken or appropriated by his creditors. Whether the cestui que trust takes an absolute interest or only a qualified interest, over which he has no power until the property comes into his possession, is to be determined in each case by ascertaining the intention of the creator of the trust. Hall v. Williams, 120 Mass. 344; Foster v. Foster, 133 Mass. 179; Wemyss v. White, 159 Mass. 484, 34 N. E. 718; Crawford v. Langmaid, 171 Mass. 309-312, 50 N. E. 606. By the terms of the trust created by article 7 of the will the trustees are to pay over the remainder of the rents and income to the "granddaughter, Harriet, quarter-yearly dur ing her natural life, into her hand, or upon her sole and separate receipts or orders therefor, in writing, signed by her, at or immediately before the payment thereof, and not by way of anticipation; or, if said trustees shall see fit, upon her request in writing, signed by her, to permit her to collect and

* *

*

receive to her own use the rents and income of said trust estates; * * * or to apply the said remainder of said rents and income, or so much thereof as said trustees shall see fit, to her individual maintenance and support and to the education, maintenance, and support of any children of hers,"-with a provision for the accumulation of any unexpended portion, to be paid over after her decease to her children or their issue. It seems very clear that she has not an absolute, unqualified interest in any portion of the rents and income prior to the time when it is paid to her. Not only are the payments to be made into her hand, or upon receipts or orders signed by her at or immediately before the payment, but the trustees may, in their discretion, decline to pay her anything, and apply only so much as they see fit to her maintenance and support, or the education, maintenance, and support of her children, and accumulate the balance until after her death. The intention of the testator to leave her without an absolute right of control or alienation of this property seems plain. The annuity given by articles 4 and 5 of the codicil is also to be held in trust. It is to be paid to her "by the person or persons or corporation who shall at the time when the same shall become payable be in receipt of the rents and income of said land." Then the land is given to trustees in trust, "out of the net rents and income" of said estate "to pay said annuity," etc. The trust follows the land, and is imposed by the will upon the corporation to which the land is conveyed by the original trustees. By one clause the annuity is made a charge upon the estate, but it is still an annuity to a cestui que trust, to be paid by a trustee or trustees. The same rule of law applies to the construction of the trust in reference to the nature of the interest taken by the cestui que trust as we have already stated in reference to ordinary trusts. It is a question whether the testator intended to give her an absolute, unqualified interest in this annuity, which she could alienate if she chose, or an interest which she could not control until the money should become payable. Although this article omits to provide that the income may be accumulated by the trustees for the benefit of her children, it requires that the payments shall be made only upon "receipts or orders therefor, signed by her, at or immediately before the payment thereon, and not by way of anticipation," etc. We are of opinion that this is equivalent to saying that she shall have no power to alienate the annuity, and that it shall be held by the trustees, to be paid to her personally when due, or to some one to whom she then directs the payment for her. We are of opinion that this is a way adopted by the testator to prevent the possibility of her wasting it, or anticipating it by contracting debts on the faith of it, or otherwise leaving herself without the provision intended for her when it should

become due. Smith v. Towers, 69 Md. 77, 14 Atl. 497, 15 Atl. 92, 9 Am. St. Rep. 398; Steib v. Whitehead, 111 Ill. 247; Partridge v. Cavender, 96 Mo. 452, 9 S. W. 785. See Jollands v. Burdett, 2 DeGex, J. & S. 79; Gibson v. Way, 32 Ch. Div. 361. In England income coming to a married woman under a settlement which forbids her use or disposal of it by way of anticipation is beyond the reach of creditors, although income which has accrued and become payable before the date of the judgment, but has not been paid over, may be taken for her debts. Whiteley v. Edwards [1896] 2 Q. B. 48; In re Lumley [1896] 2 Ch. 690; Hood Barrs v. Heriot [1896] App. Cas. 174. Under this rule the plaintiff in the present case would take nothing.

Bill dismissed.

(182 Mass. 37)

WHITMAN v. TAYLOR.

(Supreme Judicial Court of Massachusetts.

Middlesex. June 18, 1902.) CONTRACTS-CONSTRUCTION-AGREEMENT TO

MAKE NO CLAIM AGAINST AN ESTATE.

Where defendant, holding a note upon which plaintiff's decedent was guarantor, contracted to refrain from making any claim against the estate of decedent, but to share proportionately in any surplus remaining on the winding up of a partnership of which decedent was a member, provided defendant's share in such surplus should not exceed his claim against the estate under the contract of guaranty, the agreement should not be construed to mean merely that defendant would make no claim against the partnership assets, but that he should make no claim against decedent's individual estate.

Report from supreme judicial court, Middlesex county; Jabez Fox, Judge.

Bill by one Whitman, as executrix of Joseph E. Whitman, deceased, against one Taylor. The trial judge made findings for plaintiff, and, at defendant's request, reported the case to the supreme judicial court. Decree for plaintiff.

Kollmeyer & Harris, for complainant. William A. Gile, for respondent.

HOLMES, C. J. This is a bill in equity brought to restrain the defendant Taylor from prosecuting a suit against the plaintiff as executrix of the will of her husband, Joseph E. Whitman, upon a guaranty of a note given to Taylor by the defendant Webster. The note was given by Webster for money borrowed by him in order to go into partnership with the deceased. After Mr. Whitman's death, the plaintiff holding certain notes of the firm, the parties made an indenture by which Taylor covenanted to "refrain from making any claim now or here after against the estate of said J. E. Whitman by reason of the contract of guaranty of the note of George G. Webster aforesaid, but that when the affairs of said partnership have been wound up any surplus remaining

over shall be divided between" the plaintiff and defendant "in the proportion of the face value of the [defendant's] claim against the estate of J. E. Whitman to the face value of said promissory notes" held by the plaintiff, provided that the defendant's share is not to exceed the "claim he shall have against the estate of the late J. E. Whitman by virtue of the aforesaid contract or guaranty." This is the ground of the plaintiff's suit. The only defense set up is that the indenture should be construed to mean simply that the defendant would not make a claim against the partnership assets. The judge before whom the case was tried found for the plaintiff, and at the request of Taylor reported the case.

We presume that the defendant brought the case here solely for delay. "The estate of J. E. Whitman" does not mean the interest of Whitman in a firm. The words have but one natural meaning, and while if taken literally they are sensible, with the defendant's construction they become absurd. The defendant had no claim against the partnership and none against Whitman's interest in it except as it might be part of Whitman's estate properly so called. If the covenant was a covenant not to pursue the firm or some interest in it, then the provision that the defendant's share shall not exceed his claim "against the estate of the late J. E. Whitman" also must mean that it shall not exceed his claim against the firm or some interest in it, and therefore that it shall be nothing, because he had no such claim. It is unnecessary to refer to outside facts to corroborate plain construction, but the construction is corroborated by the circumstances. The instrument was drawn by an educated lawyer who could have used the words "estate of J. E. Whitman" in but one sense. It was thought that the estate amounted to but little and that the firm would show a handsome surplus, although the fact has turned out the other way.

It is suggested that Taylor's covenant was without consideration, but that does not appear.

Decree for the plaintiff.

(182 Mass. 8)

TRASK et al. v. LITTLE. (Supreme Judicial Court of Massachusetts. Suffolk. June 18, 1902.) LANDLORD AND TENANT-IMPROVEMENTS BY TENANT-RIGHTS OF SUBSEQUENT LESSEE WITHOUT NOTICE.

A lessee of hotel property built a wooden platform on piles driven into the laud, and nailed it to the hotel building, under an agreement that it should remain his property, and he should be allowed to remove it when he vacated the premises. He did not do so, and another lessee went into possession without notice of the agreement. Held, that the structure was of such a nature that it became a part of the realty, and not a mere movable chattel, so that, as against the subsequent les

« ΠροηγούμενηΣυνέχεια »