White v. Kenney , 157 Mass. 12 ( 1892 )

Knowlton, J.

The defendants have received from the board of health of the city of Boston a license to erect their stable, granted after a public hearing at which the plaintiffs were represented. The license was issued under the St. of 1891, c. 220, which provides, in § 1, that “no person shall hereafter erect, occupy, or use any building in any city for a stable for more than four horses, unless first licensed so to do by the board of health of said city, and in such case only to the extent so licensed.” Section 4 makes punishable violations of the act, and provides that “ any court having equity jurisdiction may restrain any such erection, occupation, or use contrary to the provisions of this act.”

Under statutes somewhat similar it has been held that the act gives to the designated tribunal jurisdiction to determine finally whether the use of property in accordance with the terms of a proposed license would or would not make it a public or private nuisance, and that the use of the building in conformity with the license granted would not subject the owner to indictment or injunction. Commonwealth v. Rumford Chemical Works, 16 Gray, 231, 233. Call v. Allen, 1 Allen, 137. Sawyer v. Davis, 136 Mass. 239. See also Quinn v. Lowell Electric Light Co. 140 Mass. 106; Quinn v. Middlesex Electric Light Co. 140 Mass. 109; Alter v. Dodge, 140 Mass. 594.

Whether this doctrine should be applied to the statute now before us to the full extent contended for by the defendants it is unnecessary in the present case to decide. The plaintiffs do not offer to show that they have suffered any injury, or that any nuisance has been created, but they wish to introduce evidence of what will be the natural and probable effect of the erection and use of the defendants’ proposed building according to the terms of the license. We are of opinion that the statute gives the determination of this question to the board of health. This kind of question always arises when an application for a license to erect such a stable in a city is made, and if the board of health cannot finally determine it, their license, when granted, is of no effect. If the building had been erected, and was in use, and if it were contended that the plaintiffs were suffering from a nuisance, the case would be different, and it then might become necessary to determine whether the defendants could be held liable, in a proceeding of this kind, for acts done within the authority of the license. But after a hearing before the board of health, and a license granted in pursuance of the finding of that board, we cannot enter into an inquiry, which at the best must be largely speculative, as to the probable effect of erecting and using a building which the statute recognizes as under certain circumstances proper to be erected and used. The provision of the statute above quoted, which authorizes courts of equity to restrain any “ erection, occupation, or use contrary to the provisions of this act,” implies that courts may not restrain an erection which is in accordance with the act; and after a license has been granted this provision should be given effect, so far at least as to justify the court in refusing, before the stable is erected, to investigate probabilities of injury in the future which in their nature are more or less conjectural. We are of opinion that the bill should be dismissed, with costs.

Bill dismissed.