USA > Massachusetts > Middlesex County > Lincoln > Town Report on Lincoln 1941-1945 > Part 24
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37
TOWN CLERK'S REPORT
1. Shall licenses be granted in this Town for the sale therein of all alcoholic beverages (whiskey, rum, gin, malt beverages, wines and all other alcoholic beverages)? YES NO
2. Shall licenses be granted in this Town for the sale therein of wines and malt beverages (wines and beer, ale and all other malt beverages)? YES NO
3. Shall licenses be granted in this Town for the sale therein of all alcoholic beverages in packages, so called, not to be drunk on the premises? YES NO
All the above candidates and officers are to be voted for upon one ballot. The polls will be open from seven A.M., to seven P.M., and you are directed to serve this Warrant by posting attested copies thereof, seven days at least before the time of said meeting, as directed by vote of the Town.
Hereof fail not and make return of this warrant with your doings thereon at the time and place of said meeting.
Given under our hands this twenty-third day of October, A.D. 1944.
SUMNER SMITH, HERBERT G. FARRAR, ALBERT SCHAAL, Selectmen of Lincoln.
On the reverse of the Warrant is the following :
October 30th, 1944.
I have served this Warrant by posting attested copies in each of the Post Offices, at the Town Hall and Railroad Sta- tion seven days before date of said meeting.
JOHN J. KELLIHER, Constable.
In accordance with the above Warrant the polls were de- clared open at 7 o'clock A.M., by Sumner Smith, previously the ballot box was inspected, the return of the Warrant read, and the following ballot clerks duly sworn: Helena A. Dee, Manley B. Boyce, Joseph Frazier, James W. Lennon, Martin Corrigan, Bertha V. Bowles, William O. Causer, Howard
38
TOWN OF LINCOLN
Snelling, D. E. Sherman, Jr., and Herbert L. Dodge. The polls were declared closed at 7 P.M. Total number of votes cast 1,027, with the following results:
Electors of President and Vice-President
Dewey and Bricker, Republican 660
Roosevelt and Truman, Democratic 345
Teichert and Albaugh, Socialist Labor 0
Watson and Johnson, Prohibition 0
Thomas and Hooper 1
Blanks 21
Governor
Horace T. Cahill, Republican 748
Maurice J. Tobin, Democratic 266
Henning A. Blomen, Socialist Labor
0
Guy S. Williams, Prohibition 1
Blanks 12
Lieutenant Governor
Robert F. Bradford, Republican 808
John B. Carr, Democratic
190
Alfred Erickson, Prohibition
2
George Leo McGlynn, Socialist Labor 0
Blanks 27
Secretary
Frederic W. Cook, Republican 824
Margaret M. O'Riordan, Democratic
166
Horace I. Hillis, Socialist Labor 3
Blanks 34
Treasurer
Fred J. Burrell, Republican 604
John E. Hurley, Democratic
353
Herbert Crabtree, Socialist Labor
5
Earle L. Smith, Prohibition 15
Blanks 50
Auditor
Thomas J. Buckley, Democratic 273
Frank A. Goodwin, Republican 704
Gote Elvel Palmquist, Socialist Labor
4
Charles E. Vaughan, Prohibition 3
Blanks 43
39
TOWN CLERK'S REPORT
Attorney General
Clarence A. Barnes, Republican 759
Francis E. Kelly, Democratic 215
Fred E. Oelcher, Socialist Labor 8
Howard B. Rand, Prohibition 3
Blanks 42
Senator in Congress (to fill vacancy)
John H. Corcoran, Democratic 161
Leverett Saltonstall, Republican 844
Bernard G. Kelly, Socialist Labor 4
E. Tallmadge Root, Prohibition 1
Blanks
17
Congressman 5th District
Edith Nourse Rogers, Republican 768
Milton A. Wesson, Democratic. 195
Blanks
64
Councillor 3rd District
Frank A. Brooks, Republican 866
Blanks
161
Senator 5th Middlesex District
Merton H. Cochran, Democratic 192
Richard I. Furbush, Republican 758
Blanks
77
Representative in General Court 13th Middlesex District
Harold Tompkins, Republican 834
Blanks
193
County Commissioners (2) Middlesex County
William G. Andrew, Republican. 709
Nathaniel I. Bowditch, Republican 699
Thomas B. Brennan, Democratic 180
Augustine F. Watson, Democratic 138
Blanks
328
Sheriff Middlesex County
Joseph M. McElroy, Democratic and Republican 859
Blanks 168
County Commissioner Middlesex County (to fill vacancy)
Melvin G. Rogers, Republican 831
R. D. Donaldson
1
Blanks 195 1
40
TOWN OF LINCOLN
Question No. 1
Yes 600
No 66
Blanks 361
Question No. 2
Yes.
299
No
411
Blanks
317
Question No. 3
Yes. 180
No
574
Blanks 273
Question No. 4
Yes 620
No
115
Blanks 292
Question No. 5
Yes
491
No
201
Blanks
335
Alcoholic Licenses
Question No. 1
Yes.
203
No
651
Blanks
173
Question No. 2.
Yes.
215
No
611
Blanks
201
Question No. 3
Yes
281
No
549
Blanks
197
WILLIAM H. DAVIS,
Town Clerk.
41
TOWN CLERK'S REPORT
Town Clerk's Meeting
Vote of the Middlesex District No. 13 for Representative in General Court, as determined and declared at the Town Clerk's Meeting held at Concord, November 17th, 1944:
Concord
Lincoln
Wayland
Weston
Totals
Harold Tompkins, Concord .
3,210
83-
1,356
2,067
7,467
Scattering
1
1
Blanks
524
193
550
328
1,595
Totals
3,734
1,027
1,906
2,396
9,063
Two certificates of the election of Harold Tompkins of Concord were prepared and signed by the Town Clerks for transmission to the Secretary of the Commonwealth and the Representative elect.
Elsie E. Rose
Town Clerk of Concord
William H. Davis
M. Alice Neale. Hermann A. Dolbeare
Town Clerk of Lincoln Town Clerk of Wayland Town Clerk of Weston
WILLIAM H. DAVIS, Town Clerk.
Licenses
Total number of Dog Licenses issued during the year 1944 - 303: namely, 176 Male, 51 Female, and 76 Spayed Fe- males, for which the sum of $698.40 has been paid to the Treasurer.
Sporting, etc., issued during the year 1944 - 25 Fishing, 49 Hunting, 39 Sporting, 21 Minor Fishing, 1 Citizens Trap- ping, 1 Non-Resident Fishing and 1 Military Non-Resident Fishing for which the sum of $279.25 has been paid to the Division of Fisheries and Game.
WILLIAM H. DAVIS, Town Clerk.
42
TOWN OF LINCOLN
JURY LIST, 1944
Name
Occupation
Algeo, John O.
Retired
Anderson, Lawrence B.
Architect
Bernson, Bob
Laundry Business
Blake, Charles H.
Teacher
Brinkerhoff, Robert H.
Advertising
Corrigan, Martin
Clerk
Dee, Thomas J.
Farmer
Eaton, James P.
Retired
Flint, Henry R.
Farmer
Fradd, Norman W.
Physical Director
Herman, Edwards W.
Physician
Hinds, Horace S.
Manager
Hills, H. Bigelow
Insurance
Lahnstein, Karl F.
Technician
Lennon, James W.
Clerk
Lovejoy, Walter E.
Salesman
Peterson, John F.
Retired
Snelling, Howard
Road Surveyor
Spooner, Frederick C.
Salesman
Whittemore, Lester B.
Salesman
Appointed June 26th, 1944.
WILLIAM H. DAVIS, Town Clerk.
43
TOWN CLERK'S REPORT
Vital Statistics 25 Births, 17 Marriages, and 24 Deaths were recorded during the year ending December 31st, 1944.
Births
Date of Birth
Name of Child
Names of Parents
Feb. 5. 1944 Ronald Kevin Morrissey
John J. and Elizabeth A. Morrissey
Feb. 12, 1944 Betsy Lee Schaal
Albert A., Jr., and Dorothy R. Schaal
Mar. 24, 1944 Patricia Gail Swinnemar
Percy A. and Lillian E. Swinnemar
April 3, 1944 Laura Thiessen
Arthur E. and Laura E. Thiessen
April 9. 1944 John Frank Bertolami
Leo F. and Rose M Bertolami Roland W. and Geraldine P. Robbins
April 11, 1944 Bonita Marion Robbins
April 16, 1944 Timothy Allen Taylor
April 16, 1944 Deborah Huckel Taylor
Apr. 19, 1944
David Todd, Jr.
May 1, 1944 Susanna Boylston Adams
May 6, 1944 Nancy March Condit
June 27, 1944 Susan Farnsworth
July 11, 1944 Frances Ona Cibel
Aug. 2, 1944 Peter Jeronie Maclaurin
Aug. 11, 1944 Linda Louise Barrow
Aug. 12, 1944
Patrick Joseph Dougherty
Aug. 15, 1944 Peter Woodhull Preston
Eugene W. and Geraldine D. Preston
Aug. 24, 1944
Peter Maynard Fairbanks
Sept. 8, 1944 Leland Mothershead Burr, 3rd
Sept. 20, 1944 Winthrop Davis Weld
Oct. 20, 1944 Robert Laurant DeNormandie Oct. 28. 1944| Dorothy Adkins
Rollin J. and Phyllis M. Fairbanks Leland M., Jr., and Elizabeth L. Burr Frederick C. and Ann D. Weld James and Martha B. DeNormandie Archibald W. and Dorothea C. Adkins Elliott R. and Mary F. Hedge
Oct. 31, 1944 Sarah Clement Hedge
Nov. 10, 1944 Peter Copper Livengood
James C. and Eleanor G. Livengood
Nov. 27, 1944 Sarah Ann Rogers
Alfred P. and Louise E. Rogers
Frederick B. and Lex H. Taylor
Frederick B. and Lex H. Taylor David and Geraldine F. Todd John Q. and Lucy F. Adams Robert P. and Phyllis C. Condit
Kenneth C. and Marguerite M. Farns- worth Stanley A. and Thelma P. Cibel Richard and Ellen R. Maclaurin
Norman F. and Marguerite B. Barrow Allen R. and Helen M. Dougherty
44
TOWN OF LINCOLN
Marriages
Date of Marriage
Names
Residence
Jan. 29, 1944
Richard Paul Winchell Martha Field Smith
Lincoln Montague
Cambridge Lincoln
Lexington Lincoln
Lincoln Waltham
Lexington Lincoln
Portland, Me. Lincoln
Whitman Putnam, Conn.
June 11, 1944
Harold L. Dean Harriet D. Linder
Lincoln Waltham
July
1, 1944
Ronald Christopher Cooley Carolyn Ida Wilkins
California Washington, D. C.
July
30, 1944
Otto Hagmann Katherine Elizabeth Coffey
Lincoln Malden
Aug. 12, 1944
Clifford Bradley Jeanette Elizabeth Campobasso
Waltham Lincoln
Aug. 27, 1944
Philip C. Corrigan Muriel A. Kimball
Lincoln Amesbury
Oct.
8, 1944
John Lavrakas Catherine Gomatos
Lincoln Cambridge
Nov.
1,1944
Lawrence Arthur Ross Virginia Foreman
Woburn Lincoln
Nov. 13, 1944
Walter John Silva Lucille Bowen
Lincoln Lincoln
Nov. 13, 1944
John Edwards Herman Anne Barclay Gall
Lincoln Cambridge
Dec. 31, 1944
Anthony B. Campobasso Dora M. Iannuzzo
Lincoln Waltham
Feb. 11, 1944
Feb. 22, 1944
Charles A. Tracy, Jr. Mary J. Neville
Mar. 5, 1944
Francis Joseph Davis Shirley H. Drechsler
Mar. 11, 1944
Charles Martin Copeland Phyllis Jean Baker
April 15, 1944
Leon W. Stevens Winifred Peterson
Robert Walder Randall Natalie Marie Winterburn
June 3, 1944
John Radford Abbot, Jr. Lucy Robbins Rand
45
TOWN CLERK'S REPORT
Deaths
Date of Death
Name
Y.
Age M.
D.
Jan. 18, 1944
James M. Neville
64
-
Jan. 31, 1944
James Hutton
78
10
3
Feb. 3. 1944
William Dudley
22
9
23
Feb. 20, 1944
Ida M. Taylor
73
11
30
Feb.
19, 1944
John Harold MacLean
37
1
10
Mar
11, 1944
Charles J. Waterman
57
-
-
Mar. 18, 1944
William J. Wiley
82
6
24
Mar. 20, 1944
Hattie Glenn
81
3
15
April 4, 1944
Elizabeth G. Mackenzie
56
11
7
April 10, 1944
Emily L. Osgood
83
-
-
April 12, 1944
Clarence Hill
74
6
3
April 18, 1944
Alberta Grover
76
9
-
May 11, 1944
James Ford
59
7
10
May 22, 1944
Sarah E. Morris
67
9
7
June 9, 1944
Mary K. Wright
70
7
12
July 12, 1944
Clara L. Butler
73
6
18
July 26, 1944
Thomas F. Giblin
80
-
13
Aug. 13, 1944
Sarah A. McAllister
88
6
-
Aug. 30, 1944
Warwick V. Harris
50
3
13
Oct.
7, 1944
Hildreth G. MacFarland
73
-
Oct. 10, 1944
Dorothy S. Davison
50
-
-
Oct. 27, 1944
Bernard V. Brown
71
5
5
Nov. 30, 1944
Emma J. Freese
79
28
Nov. 23, 1944
Josephine A'Hearn
71
8
26
46
TOWN OF LINCOLN
In Memoriam WARWICK V. HARRIS
Died August 30, 1944 He served the town faithfully for ten years as Town Treasurer.
47
REPORT OF SELECTMEN
REPORT OF BOARD OF SELECTMEN
The Board organized with Sumner Smith as Chairman. Appointments made by the Selectmen during the year are printed with the list of Town Officers.
Bedford and Virginia Roads
The Federal Government closed these roads and because inhabitants of Lincoln, Concord, and Bedford were greatly inconvenienced by this act, the three towns are bringing action against the Government for damages suffered therefrom. The Selectmen retained Samuel Hoar, Esq., to further the Town's interest in loss of these roads.
Gifts of Julian DeCordova Esq.
Mr. DeCordova generously made what has become his annual gifts to the Town, one of $10,000.00, interest and prin- cipal to be used at a later date by the Selectmen for repairs, improvements, maintenance, and operation of the DeCordova Museum and Park, and one of $2,000.00 for the Town Treas- ury.
Zoning and Building By-Laws
The Building Commissioner, the Chief of Police, the Water Board, the Board of Health, and the Selectmen all co-operated to the fullest extent in assembling evidence for presentation in a petition to the court to uphold the Zoning and Building By-Laws, the regulations of the Water Commissioners and of the Board of Health.
The Town officers believe the importance of the Findings, Rulings and Orders of the Court are so great with respect to validity and strength of the Town's By-Laws and regulations, that they should be included in this report exactly as they were handed down by the Court.
48
TOWN OF LINCOLN
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, ss. IN EQUITY SUPERIOR COURT
TOWN OF LINCOLN
Petitioner for attachment for contempt US. WALTER F. MURPHY, et als. (Eq. No. 12717)
TOWN OF LINCOLN
US. HENRY J. HALLORAN (Eq. No. 13275)
FINDING, RULINGS AND ORDERS
The above entitled petition for attachment for contempt (hereinafter called the petition) was filed September 30, 1944, in the Equity suit No. 12717 against the defendants therein and against Henry J. Halloran, who is the defendant in the second above entitled Equity suit No. 13275. The latter suit was begun by a bill of complaint filed September 5, 1944. No. 12717 will be referred to as the Murphy case, and No. 13275 as the Halloran case. The petition and the Halloran case were heard together beginning October 11, 1944.
A final decree after rescript entered in the Murphy case (See 314 Mass. 16) June 14, 1943, enjoined the defendants therein, Murphy and Lexington Stock Farms Inc., and each of them "against carrying on, in Lincoln, on the premises described in the bill of complaint the trade or business of raising hogs . . . . "
At the hearing before me in these cases all the respondents in the contempt proceeding rested at the conclusion of the petitioner's evidence and only the evidence as it then stood has been resorted to in determining facts in the matter of the petition. That evidence, and other evidence also, was offered in support of the bill in the Halloran case.
The premises involved in the Halloran case are the same premises that were involved in the Murphy case. At the outset of the hearing I took an extended view of the premises and surrounding territory. Facts established by the view and by the evidence relevant to the petition, and material to de-
49
REPORT OF SELECTMEN
cision in the Halloran case, in addition to those above stated which appear of record in the cases, are these: -
In February, 1942, the corporate respondent, which was owned and controlled by Murphy, leased to him a tract of land of about thirty-five acres, nearly thirty of which are in Lincoln. Murphy also in the early spring of 1942 leased from one Connors a tract of land in Lincoln containing about twenty acres and adjoining the thirty-five acre tract on the north- west. On June 5, 1942, Murphy began the business of raising hogs on the larger tract and continued that business until January 5, 1944. Both tracts (except the small portion of the larger tract which is in Lexington) are within a "single resi- dence district" in Lincoln, as such district is defined in a zon- ing by-law and as shown on the zoning map which is part of the by-law which was adopted by the Town and approved by the attorney-general and became effective on July 8, 1929. The by-law refers to General Laws, chapters 40 and 143 as "the enabling laws under which zoning is done." The by-law provides in substance that new buildings or structures and alterations of existing buildings or structures may be con- structed, and land, building or structure, or parts thereof may be used in a single residence district as specified in Section 5. That section provides that land, buildings or structures, in such district may be used for "(f) Farms, green houses, nur- series, and truck gardens, and the sale of produce raised in the Town or on land of the owner" and for "(I) A private stable and all farm buildings which are used in connection with and as part of the operation of a farm," and for (m) "such accessory uses as are customarily incidental to any of the above uses." The by-law also defines "a non-conforming use or building" (Sec. 2j) as "An existing use of land or a structure or building which does not conform to the regula- tions for the district in which such use of land, structure or building exists." The by-law further provides (Sec. 15) that "(a) Any building, part of building or use of premises which, at the time of adoption of this by-law, does not conform to this by-law or is being put to a non-conforming use may con- tinue to be used for the same purpose;" and "(d) In residence districts, when a non-conforming use has been discontinued for a period of one year, it shall not be re-established and future use shall be in conformity with this by-law."
50
TOWN OF LINCOLN
On August 31, 1927, the Board of Health of Lincoln pursu- ant to and in conformity with statutory authority (G.L. and Ter.Ed., ch. 111 §§ 31, 143-158) adopted a comprehensive set of health regulations, including regulations of piggeries. Those regulations have been in continuous effect since their adoption. They define a piggery as "any farm or location on which more than twenty-five hogs are kept." They provide (Reg. 39) that "any person keeping more than twenty-five hogs shall require (sic) a permit from the Board of Health . . . " and they prohibit (Reg. 40) the establishment of any new piggery or extension of any existing piggery after August 31, 1927, without a permit from the Board of Health.
No question appears to have been raised in the Murphy case as to the validity or applicability of the zoning by-law, and the respondents to the petition do not and cannot raise it now. (See Bacon v. Onset Bay Grove Association, 286 Mass. 487 at 491; New England Novelty Co. Inc. v. Sandberg, et als., 315 Mass. 739 at 753.) But the defendant Halloran contends that the zoning by-law is invalid, or is inapplicable, in his case, even if it should be found that he is conducting a piggery, or the business or trade of raising hogs. His conten- tion is that G.L. ch. 40, § 25 as amended by St. 1925, ch. 116 (the statute in effect when the by-law was adopted - see also St. 1933, ch. 269) enabled the Town by by-law to restrict only the use of buildings in certain zones, and that it conferred no power to restrict the use of land. Hogs can not successfully be raised in Lincoln, either as a trade or business, or as inci- dental to farming, without the use of both land and of shelter afforded by buildings. Upon facts already stated and others to be stated, I rule that the by-law is valid and applicable to the Halloran case.
In March, 1925, one Connors bought the thirty-five acre tract above described, and established thereon and thereafter conducted the trade or business of raising hogs, or a piggery as defined in the above mentioned health regulation of Lin- coln. He was conducting the business on the premises when the by-law became effective July 8, 1929. The use of premises then being made was therefore a non-conforming use under the by-law. Vital questions of fact in both the contempt and equity proceedings are (1) when these proceedings were be- gun, was Halloran conducting a piggery, or engaged in the
51
REPORT OF SELECTMEN
trade or business of raising hogs on the premises in Lincoln, in violation of the by-law, and (2) had there been a discon- tinuance for a year or more of the non-conforming use before Halloran began the activities complained of in the bill against him?
On December 3, 1943, there having been no compliance with the final decree in the Murphy case, the Town filed a petition for attachment for contempt against Murphy and the corporate defendant therein. As the petition was about to be heard, Murphy agreed to remove his hogs, which then num- bered about twenty-four hundred, from the premises, and did so, and in consequence the petitioner filed on January 5, 1944, a suggestion that the injunction was not being violated, whereupon, on the same day, that petition was dismissed. For the next six months there were no hogs on the premises.
Early in May, 1944, Halloran began negotiations with Murphy for the purchase of the thirty-five acre tract and for the purchase of hogs. On June 1, 1944, the Lexington Stock Farms Inc., by a deed executed on its behalf by Murphy, con- veyed that tract to Halloran. The buildings were those described in 314 Mass. 16. Halloran paid seven thousand dollars for the real estate, of which one thousand dollars were paid by check payable, to Murphy's order, and six thousand dollars by Halloran's promissory note payable also to Mur- phy's order one year from its date, June 1, 1944. The note is secured by a mortgage of the real estate to Murphy, of the same date. The mortgage was executed and acknowledged on June 1, 1944, but both deed and mortgage were recorded and land court certificates of title were issued on July 12, 1944. Halloran took possession of the premises about June 1, 1944. The buildings, all in Lincoln, are a tool house, a brick garage for eight vehicles, a frame sow house eighty feet wide and two hundred fifty feet long containing one hundred and sixty separate pens, an unfinished sow house forty feet wide by two hundred feet long and feeding platforms with wooden ramps leading to twenty-one yards of which sixteen were in use at the time of the hearing. The platforms are over twelve hundred feet long.
On July 28, 1944, Halloran bought of Murphy nine hundred and eighty-two hogs, which were brought at once to the prem-
52
TOWN OF LINCOLN
ises. During July he bought and placed on the premises two hundred forty-three other hogs. He increased the number thereafter until at the date of hearing there were about twenty-five hundred hogs on the premises. They consume from fifteen to twenty tons of garbage daily. The garbage is trucked to the feeding platforms in ten trucks, three of which Halloran leased from Murphy for one year beginning August 1, 1944, under a lease which calls for monthly payments of two hundred dollars each. Halloran buys most of his garbage from the Newport (R. I.) Naval Training station. No feed for the hogs is grown on the premises.
Halloran contends that he is not keeping a piggery contrary to the by-law, but is keeping pigs as an incident to the conduct of a farm, permissible under the by-law, Section 5(f), (1) and (m) above quoted. About the time he bought the real estate, Halloran acquired from Murphy the right to use the twenty- acre tract in Lincoln adjoining the larger tract on the north- west. This tract slopes gently northerly and westerly from the larger tract, and is bounded on all sides by woods. A cart path runs from a gate in a wire fence on the northerly side of the large tract, almost to the northerly side of the twenty- acre tract, and substantially bisects the latter.
Sometime in June, 1944, Halloran, who owns no plow, harrow, tractor or farm machinery or tools of any kind except shovels and small tools used in the piggery, and who has had no experience in farming, hired a man to plow and harrow about three-quarters of the westerly half of the twenty-acre tract, and in this area he planted squash, but before July 10th, he had the hills of squash all plowed under, and substantially the same area later sowed to turnips. Halloran uses sweep- ings from the feeding platforms as fertilizer and late in August, 1944, and also at the time of the view, this same area was plentifully strewn with bones.
About two weeks before the hearing Halloran had about an acre of the hitherto unplowed easterly half of the twenty- acre tract plowed, but except as just described he has done nothing by way of cultivating any of the twenty-acre tract. The thirty-five acre tract is mostly wooded outside the cleared area occupied by the hog pens and feeding platforms and buildings. Halloran is obligated to pay Murphy six thousand
53
REPORT OF SELECTMEN
dollars for the land in Lincoln on June 1, 1945. He is obli- gated to pay Murphy for nine hundred eighty-two hogs, twenty thousand one hundred seventy-five dollars and ninety- six cents in two installments, one of ten thousand dollars on January 28, 1945, and one of ten thousand one hundred seventy-five dollars and ninety-six cents on May 28, 1945. He has no resources from which to meet these obligations except the property itself and such income as he can derive from its use. Obviously he can derive no substantial income from the sale of crops raised on the hired land. Halloran claims that it was, and is, his real intention to conduct a farm on the owned and occupied tracts and that he applied to the Town's board of water commissioners for water to use in his intended farm- ing operations, and that he has been prevented from carrying out his plan to conduct a farm by the water commission's capricious and arbitrary refusal to supply him with water needed to irrigate the twenty-acre tract. Consequently, he contends, the plaintiff does not come in court with clean hands and therefore should be denied the relief sought in its bill, even though it should be found that he is conducting a pig- gery in violation of the by-law. Further facts on the question whether the defendant is conducting a farm or a piggery and on the defence of want of clean hands, are these.
Sometime before July 28, 1944, Halloran asked one of the water commissioners if the Town would supply him with water for the premises. A pipe runs from a Town main in the way south of the thirty-five acre tract, through the premises and almost to the line between the owned and the rented tracts. Opposite the hog yards a branch, controlled by a shut-off, takes off from this pipe and runs into the hog yards. At a hearing by two of the water commissioners in the Town Hall late in July, 1944, asked why he wanted water Halloran replied that it was for the use of men, and horses (of which he had two) and for about two hundred hens he intended to keep. The commissioners had not then recently inspected the premises, on which there were by July 28th, over nine hundred hogs, but had heard Halloran intended to keep hogs and asked him whether he so intended. His answers were evasive. He was told he would be in trouble with the Town if he estab- lished a piggery on the premises, and that Murphy had been "evicted" for keeping a piggery. He said he had heard
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