Board of Health of Holbrook v. Nelson

217 N.E.2d 777, 351 Mass. 17, 1966 Mass. LEXIS 601

• Court: Massachusetts Supreme Judicial Court
• Decided: June 6, 1966
• Status: Published

Opinion

Kirk, J.

The defendant John J. Duane Company, Inc. (Duane), whose business is the demolition of buildings, is the lessee of five acres of a forty-seven acre tract owned by the defendant Nelson. The plaintiff board, under G-. L. c. Ill, § 150A, seeks to enjoin Duane from using, and Nelson from permitting the use of, the leased land in Holbrook as a dumping ground. The master to whom the case was referred concluded that the defendants were using the site as a dumping ground in violation of G. L. c. Ill, § 150A. 2 The defendants appeal from a decree granting the injunction.

The master found the following: Since June 17, 1964, Duane has daily deposited on the site twenty-five to thirty-five loads of debris, each load consisting of five to seven tons. Although the debris was made up chiefly of lumber from demolished buildings, it. included large quantities of brick, plaster, wire lath, pipe, and, occasionally, refrigerators, tires and ashes. The site was never assigned as a dumping ground by the board of health. The town’s fire chief, acting under G. L. c. 48, § 13, as amended by St. 1964, c. 303, 3 at Nelson’s request- on Duane’s behalf, granted per mission, if weather conditions were suitable, to burn the debris in the open air for two days at a time. Fire control measures were imposed as a condition to the permission. Unburned materials were removed when the fires were extinguished.

The defendants contend that (1) demolition debris is not “garbage, rubbish or other refuse”.as specified by Gr. L. c. Ill, § 150A, and therefore the site is not a dumping ground requiring an assignment as such by the board under § 150A; (2) Gr. L. c. 48, § 13, as amended, relating to open air fires, governs exclusively the burning of demolition debris, and the requirements of the statute have been met; and (3) the plaintiff’s bill is barred by loches.

The contentions are without merit.

(1) Whether with or without noncombustibles, the deposited debris was “rubbish- or other refuse” under any definition of either word, Mile Road Corp. v. Boston, 345 Mass. 379, 382-383, and therefore the use of the site for the deposit of the named materials made it a dumping ground within Gr. L. c. Ill, § 150A. As such it could not lawfully be established or maintained unless assigned by the board of health. (2) General Laws c. 48, § 13, as amended, does not remove, demolition dumps from the provisions of G. L. c. 111, § 150A. It forbids outdoor burning anywhere, including at an assigned dump, without permission of the fire chief. It provides that, when the burning of demolition material is to be done anywhere, additional safeguards may be imposed by the fire chief under G. L. c. 48, § 13. Permission to burn under the latter statute does not dispense with the requirement of G. L. c. 111, § 150A, that the site be assigned as a dumping ground by the board of health. (3) The defence of loches is not available to the defendants where the proceeding is brought by an authorized public agency to enforce the laws of the Commonwealth. Lincoln v. Giles, 317 Mass. 185, 187. See Everett v. Capitol Motor Transp. Co. Inc. 330 Mass. 417, 421.

Decree affirmed with costs of appeal.

2 “No place in any city or town shall be . . . maintained by any person ... as a dumping ground for garbage, rubbish or other refuse . . . unless such place has been assigned by the board of health ... as a dumping ground . . .. ’ ’ The statute gives the Superior Court jurisdiction in equity to enforce its provision.

3 “No person shall . . . maintain ... a fire in the open air at any time except by permission, covering a period not exceeding two days . . . granted by the . . . chief of the fire department .... The . . . chief ... in the case of a permit for a demolition burning may make it a condition . . . that sufficient fire department personnel ... be present.”