Rogers v. Elliott

146 Mass. 349, 15 N.E. 768 (1888)



In densely populated communities, the use of property in many ways which are legitimate and proper necessarily affects in greater or less degree the property or persons of others in the vicinity. In such cases, the inquiry always is, when rights are called in question, what is reasonable under the circumstances. If a use of property is objectionable solely on account of the noise that it makes, it is a nuisance, if at all, by reason of its effect upon the health or comfort of those who are within hearing. The right to make a noise for a proper purpose must be measured in reference to the degree of annoyance which others may reasonably be required to submit to. In connection with the importance of the business from which it proceeds, that must be determined by the effect of noise upon people generally, and not upon those, on the one hand, who are peculiarly susceptible to it or those, on the other, who by long experience have learned to endure it without inconvenience; not upon those whose strong nerves and robust health enable them to endure the greatest disturbances without suffering, nor upon those whose mental or physical condition makes them painfully sensitive to everything about them. 


A party lived across the street from a church. Due to an illness, loud noises could cause him to have convulsions. The clergyman of the church was asked to not ring the bell, but he refused to refrain from ringing it, causing it to be rung eight times on the next Sunday. The noise caused plaintiff to have violent convulsion, which increased the illness and retarded his recovery. The injured party brought suit to recover damages for nuisance against the clergyman and the trial court determined he was not entitled to recover. 


Can the injured party claim damages for a nuisance?




The Court held that recovery was not possible because it was not contended that the ringing of the bell for church services in the manner shown by the evidence materially affected the health or comfort of ordinary people in the vicinity. Instead, the claim rested upon the injury done on account of his peculiar condition. Further, the plaintiff could not put himself in a place of exposure to noise and demand as of legal right that the bell should not be used. Finally, the Court held that in the absence of evidence that the clergyman acted wantonly or with express malice, that implication could not come from his exercise of his legal rights.

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