Com. v. Perry, 139 Mass.
198 (1885)
29 N.E. 656
139 Mass. 198
Supreme Judicial Court of Massachusetts, Norfolk.
COMMONWEALTH
v.
PERRY. 1
March 25, 1885.
Exceptions from superior court, Norfolk county;
BACON, Judge.
West Headnotes (4)
[1] Nuisance
Matters Constituting Public Nuisances in
General
A piggery, in which swine are kept in
such numbers that their natural odors
fill the air, and make the occupation of
neighboring houses and passage over the
adjacent highways disagreeable, is a nuisance.
11 Cases that cite this headnote
[2] Nuisance
Matters Constituting Public Nuisances in
General
The natural odors of swine kept in large
numbers constitute a nuisance, if they annoy
people in the vicinity.
1 Cases that cite this headnote
[3] Nuisance
Indictment or Information
An indictment charged that the defendant,
at certain times and at a place named, “near
the dwelling-houses of divers goods citizens of
the said commonwealth, and also near divers
public streets and common highways there
situate,” did keep and maintain 500 swine,
“by reason whereof divers large quantities of
noisome, noxious, and unwholesome smokes,
smells, and stenches, on the days and times
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
aforesaid, then and there were emitted, * *
* and the air thereabouts * * * greatly filled
and impregnated with many noisome * * *
stinks and stenches, and has been corrupted
and rendered very insalubrious, to the great
damage and common nuisance of all the
citizens,” etc. Held, sufficient.
4 Cases that cite this headnote
[4] Nuisance
Evidence
On the trial of an indictment for maintaining a
nuisance in the shape of a piggery containing
500 or more pigs, evidence that such
establishments are customary throughout
the state in populous neighborhoods is
inadmissible.
1 Cases that cite this headnote
**656 Defendant, Oliver H. Perry, was indicted and
convicted for maintaining a public nuisance. The *198
indictment charged that, at certain dates, defendant, “near
the **657 dwelling-houses of divers good citizens of the
said commonwealth, and also near divers public streets
and common highways there situate, then and there did
keep and maintain, and yet doth keep and maintain, a
large number of swine, to-wit, five hundred; by reason
whereof divers large quantities of noisome, noxious, and
unwholesome smokes, smells, and stenches, on the days
and times aforesaid, then and there were emitted, sent
forth, and issued, and the air thereabouts, on the days
and times aforesaid, was greatly filled and impregnated
with many noisome, offensive, and unwholesome smells,
stinks, and stenches, and has been corrupted and rendered
very insalubrious, to the great damage and common
nuisance of all the citizens of said commonwealth there
being, inhabiting, and dwelling, passing and repassing, to
the evil example of all others in like case offending against
the peace of the said commonwealth, and contrary to the
form of the statute in such case made and provided.”
*200 Defendant offered to show that it was the custom
throughout the state to locate and carry on piggeries
in more populous neighborhoods than the one in which
his was located, and that they were tolerated by custom
and usage. Defendant requested the following instruction,
1
Com. v. Perry, 139 Mass. 198 (1885)
29 N.E. 656

which was refused: “Evidence of the natural odors which H.N. Shepard, Asst. Atty. Gen., for the Commonwealth.
come from the bodies of domestic animals, however
annoying to certain persons, will not sustain an indictment Opinion
for a nuisance. The keeping of swine to the number of
five hundred near dwelling-houses and streets of a town HOLMES, J.
is not per se a nuisance.” The judge charged as follows:
A piggery in which swine are kept in such numbers that
“The natural odor of one animal might not be a nuisance;
their natural odors fill the air thereabouts, and make
but the natural odor of five *201 hundred might be. It
the occupation of the neighboring houses and passage
is for the jury to say whether it was so in this case. Five
over the adjacent highways disagreeable, or worse, is a
hundred swine kept in the vicinity of roads and dwelling-
nuisance. Com. v. Kidder, 107 Mass. 188, 192; Regina v.
houses might become a nuisance, where one would not.
Wigg, 2 Salk. 460, 2 Ld.Raym. 1163. See Com. v. Oaks,
People residing in the neighborhood of this piggery have
113 Mass. 8; Com. v. Upton, 6 Gray, 473. The indictment
a right to have the air free and uncontaminated by
was sufficient, and the instructions asked were erroneous.
odors, smells, and stenches offensive to the senses. It
See, further, Com. v. Chemical Works, 16 Gray, 231;
is not necessary for the government to show that the
Com. v. Sweeney, 131 Mass. 579; Com. v. Brown, 13
contamination of the atmosphere is to such an extent as
Metc. (Mass.) 365. No defect has been pointed out in the
to cause actual injury to health, but it will be sufficient
instructions given. It would have been well if they had
for it to show that the smells and stenches are so offensive
impressed more fully on the jury that the question was one
as to render the residences and habitations in the vicinity
of degree; but that was implied by what was said, and the
uncomfortable. The keeping of swine to the number of
defendant asked for nothing more specific.
five hundred near dwelling-houses and streets of a town
will become a nuisance, if smells and stenches actually
Evidence of the practice throughout the commonwealth
emitted from such keeping are such as to render such
was inadmissible. See Cutter v. Howe, 122 Mass. 541, 549.
dwelling-houses uncomfortable for residents, or to render
the passing in said streets uncomfortable.” Defendant
Exceptions overruled.
excepts. Exceptions overruled.

Attorneys and Law Firms All Citations

H.J. Boardman and S.H. Tyng, for defendant. 139 Mass. 198, 29 N.E. 656

Footnotes
1 This case, filed March 25, 1885, is now published by request, with others, in order that the Northeastern Reporter may
cover all cases in volume 139, Massachusetts Reports.

End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works.

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 2