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resort to means and measures which affect injuriously other
lands than those upon which the manifestation of the cause of
sickness is found."

Salem v. Eastern Railroad Company, 98 Mass. 431, 446.
cf., however, Huse v. Amesbury, 163 Mass. 240.
Infra, Pub. Stats., chap. 80, sect. 28.

In a suit to recover expenses incurred in removing a nuisance, when prosecuted against a party on the ground that he "caused the same," but who was not heard, and had no opportunity to be heard, such party is not concluded by the findings or adjudications of the board, and may contest all the facts upon which his liability is sought to be established.

Salem v. Eastern Railroad Company, 98 Mass. 431, 447. In a suit to recover expenses incurred in removing a nuisance, when prosecuted against a party on the ground that he "caused the same," the record of proceedings of the board is prima facie evidence of the existence of a nuisance which warranted the board in taking action and incurring expense for its removal; but where the defendant was not heard and had no opportunity to be heard, it is not evidence that the nuisance was caused by the defendant, and all the facts upon which it is sought to charge the defendant with liability are open to be tried and determined by the proofs in the case.

Salem v. Eastern Railroad Company, 98 Mass. 431, 451.

An action to recover expenses incurred in the removal of a nuisance should be brought in the name of the city or town and not in the names of the members of the board.

Salem v. Eastern Railroad Company, 98 Mass. 431.

See also Winthrop v. Farrar, 11 Allen, 398.

P. S., 80, § 24.

notify occu

The board, when satisfied upon due examination that a Board may cellar, room, tenement, or building, in its town, occupied pants of unfit dwelling place as a dwelling-place, has become, by reason of the number to quit, etc. of occupants, want of cleanliness, or other cause, unfit for 1850 such purpose, and a cause of nuisance or sickness to the occupants or the public, may issue a notice in writing to such occupants, or any of them, requiring the premises to be put into a proper condition as to cleanliness, or, if they see fit, requiring the occupants to quit the premises within such time as the board may deem reasonable. If the persons so notified, or any of them, neglect or refuse to comply with the terms of the notice, the board may cause the premises to be properly cleansed at the expense of the owners, or may remove the occupants forcibly and close up the premises, and the same shall not again be occupied

When a party is convicted of

a nuisance, board may order it destroyed.

1801

Injunction may issue in cases of nuisance.

1827

Board may make compul. sory examination of premises, when.

1816

as a dwelling-place without the consent in writing of the board. If the owner thereafter occupies or knowingly permits the same to be occupied without such permission in writing, he shall forfeit not less than ten nor more than fifty dollars.

P. S., 80, § 25.

When a person is convicted on an indictment for a common nuisance injurious to the public health, the court in its discretion may order it to be removed or destroyed at the expense of the defendant, under the direction of the board of health; and the form of the warrant to the sheriff or other officer may be varied accordingly.

P. S., 80, § 26.

The superior court, or a justice thereof, in term time or vacation, may, either before or pending a prosecution for a common nuisance affecting the public health, issue an injunction to stay or prevent the same until the matter is decided by a jury or otherwise; may enforce such injunction according to the course of proceedings in chancery; and may dissolve the same when the court or one of the justices shall think proper.

P. S., 80, § 27.

When the board thinks it necessary for the preservation of the lives or health of the inhabitants to enter any land, building, or premises, or vessel within its town, for the purpose of examining into and destroying, removing, or preventing a nuisance, source of filth, or cause of sickness, and the board or any agent thereof sent for that purpose is refused such entry, any member of the board or such agent may make complaint under oath to any justice of any court of record or to two justices of the peace of the county, stating the facts of the case so far as he has knowledge thereof; and said justice or justices may thereupon issue a warrant, directed to the sheriff or any of his deputies, to such agent of the board, or to any constable of such town, commanding him to take sufficient aid, and at any reasonable time repair to the place where such nuisance, source of filth, or cause of sickness complained of may be, and to destroy, remove, or prevent the same, under the directions of the board.

P. S., 80, § 80.

coverable of

how sued for.

Expenses incurred by a town in the removal of nui- Expenses resances or for the preservation of the public health, which individuals, are recoverable of a private person or corporation, may 1849 be sued for and recovered in an action of contract.

P. S., 80, § 81.

feitures to inure

Fines and forfeitures incurred under general laws, the Fines and forspecial laws applicable to a town, or the by-laws and to use of towns. regulations of a town, relating to health, shall inure to 1849 the use of such town.

Under Statutes of 1849, chap. 211, sect. 7, which provides that all fines and forfeitures, incurred under the general law or the special laws applicable to any town or city, or the ordiances, by-laws, and regulations of any town or city, relating to health, shall inure to the use of such town or city, as may be recovered by complaint in the name of the treasurer, it was held that such fines and forfeitures were recoverable only by complaint in the name of the treasurer of the city or town, and in no other way. Commonwealth v. Fahey, 5 Cush. 408.

Under sect. 26, chap. 28 of the Pub. Stats., the city marshal or other police officer, or the city treasurer, may prosecute for all fines and forfeitures which may inure to the city.

The ordinances and by-laws of the city of Boston relating to burying-grounds and the burial of the dead were held to be regulations relating to health within the meaning of the above statute.

Commonwealth v. Fahey, 5 Cush. 411.

WET, ROTTEN, AND SPONGY LANDS.

P. S., 80, § 28.

Acts of 1887, 338, § 1.

Acts of 1894, 218, § 4.

or Lands injurious be deemed a

or

Lands in a city or town which are wet, rotten, spongy, or covered with stagnant water, so as to offensive to persons residing in the vicinity thereof, injurious to health, shall be deemed to be a nuisance, and the board of health of such city or town may, upon petition and hearing, abate such nuisance in the manner provided in the following sections, but no such nuisance

to health, etc.,

nuisance.

1868

shall be abated by a board of health of a city or town without a previous appropriation therefor by such city or town if the expense of such abatement will exceed the sum of two thousand dollars.

On a petition for a writ of certiorari to quash the proceedings of the board of health of a city, assessing the expense of abating a nuisance under the Statute of 1868, chap. 160 (Pub. Stats., chap. 80, sect. 28 et seq.), the record showed a petition, addressed to the board of health, which complained of large quantities of water standing in an open drain between two streets, from which arose such unhealthy odors as to cause great sickness in the neighborhood, and prayed for a hearing; a reference of the same to the next city government; a vote of the board of health, the next year, to view the premises; a view taken; an order that the city engineer, under direction of a committee, be directed to widen, straighten and deepen a watercourse between the two streets, and that the clerk be instructed to notify abutters on the watercourse of a hearing on a certain day, under the Statute of 1868, chap. 160 (Pub. Stats., chap. 80, sects. 28 et seq.); a warrant issued by the clerk to a constable to notify abutters of the intention of the board of health to enter upon the premises for the purpose of widening, deepening and straightening the brook, and that a hearing would be given at a time and place named, to all parties interested in the matter, as to the necessity and mode of abating the nuisance caused by the brook and the question of damages, and of the assessment and apportionment of the expenses thereof, and a notice setting forth these things and stating that it was in accordance with the Statute of 1868, chap. 160 (Pub. Stats., chap. 80, sect. 28 et seq.). Held, that it sufficiently appeared that the board was attempting to act under this Statute. Held, also, that the petition was sufficient to give the board jurisdiction.

Grace v. Newton Board of Health, 135 Mass. 490.

A petition to the board of health of a city described a nuisance as owing "to large quantities of stagnant water standing in an open drain between two streets of the city." The board of health issued a notice that it was acting under the Statute of 1868, chap. 160 (Pub. Stats., chap. 80, sects. 28 et seq.), and abated the nuisance. On a petition for a writ of certiorari to quash the proceedings of the board of health, it did not appear whether the drain was a public or a private one, nor for what purpose it was made, and it appeared to be a watercourse. Held, that it could not be said that the nuisance was not such as could be abated under the Statute of 1868, chap. 160 (Pub. Stats., chap. 80, sects. 28 et seq.), and that it was too late to take this objection.

Grace v. Newton Board of Health, 135 Mass. 490.

Under the Statute of 1868, chap. 160 (Pub. Stats., chap. 80, sects. 28 et seq.), a board of health may act by a committee in abating a nuisance.

Grace v. Newton Board of Health, 135 Mass. 490.

"It [the Statute of 1868, chap. 160, Pub. Stats., chap. 80, sects. 28 et seq.] contemplates that lands may be entered upon which are not themselves wet, rotten, spongy or covered with stagnant water, and excavations, embankments and drains made thereupon, in order to abate the nuisance, and that proceedings under the statute are in the nature of taking private property for public use."

Per Field, J., in Grace v. Newton Board of Health, 135 Mass. 490, 492.

Where a nuisance is artificially created by emptying the sewage of dwelling houses through a private drain in a private way upon the surface of such way and of abutting private land, the board of health has no authority when acting under Pub. Stats., chap. 80, sects. 28 et seq., to abate such nuisance by extending such private drain through such abutting private land to a brook thereon and by cleaning out the brook so that it would carry off the sewage.

Huse v. Amesbury, 163 Mass. 240.

In the opinion in this case it is suggested that the nuisance might have been dealt with under Pub. Stats., chap. 80, sects. 18-25.

P. S., 80, § 29.

Acts of 1894, 218, § 4.

Any person claiming to be injuriously affected by such nuisance may, by petition describing the premises upon which it is alleged to exist, and setting out the nature of the nuisance complained of, apply to the board for its abatement; thereupon such board shall proceed to view the premises, and examine into the nature and cause of such nuisance.

P. S., 80, § 30.
Acts of 1894, 218, § 4.

Persons injuri. ously affected,

etc, may apply abatement.

to board for

point hearing,

Upon such examination the board if of opinion that Board to ap the prayer of the petition or any part thereof should be etc. granted, shall appoint a time and place for a hearing, 1868 and before the time so appointed shall cause reasonable notice of the time and place to be given to the petitioners, the persons whose lands it may be necessary to enter upon to abate the nuisance, and any other persons who may be affected by the proceedings, and, except in those cities and towns in which the mayor and aldermen and

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