Associated Contractors Stone Co. v. Pewee Valley Sanitarium and Hospital
| Decision Date | 15 March 1963 |
| Parties | ASSOCIATED CONTRACTORS STONE CO., Inc., et al., Appellants, v. PEWEE VALLEY SANITARIUM AND HOSPITAL etc., et al., Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Frank J. Dougherty, Jr., R. D. McAfee, Louisville, for appellants.
J. Donald Dinning, McElwain, Dinning, Clarke & Winstead, Louisville, for appellees.
The question before us in this injunction case is whether the chancellor's finding (in substance and effect) that a rock quarry would necessarily result in unreasonable interference with the use and enjoyment of other property in its vicinity, and thereby constitute a nuisance, was 'clearly erroneous.' CR 52.01; Curry v. Farmers Livestock Market, Ky.1961, 343 S.W.2d 134, 138.
To sustain an anticipatory injunction against a threatened nuisance there must be sufficient evidence 'that a nuisance necessarily would result from the activity.' Harman v. Allen, Ky.1956, 297 S.W.2d 59 60; City of Somerset v. Sears (1950), 313 Ky. 784, 233 S.W.2d 530, 532. A rock quarry is not a nuisance as such but may be so conducted as to be a nuisance in fact, as 'where blasting and dust in its operation substantially interfere with the comfort of residents in the neighborhood.' Cf. 38 Am.Jur. 367 (Nuisances, Sec. 107); Annotation, 'Quarries, gravel pits and the like as nuisances,' 47 A.L.R.2d 496; 66 C.J.S. Nuisances Sec. 61, p. 810.
The proposed quarry site is located in the edge of Oldham County a short distance southeast of the City of Pewee Valley. It is a rustic neighborhood with no industry and no public water supply. The need for water is satisfied by wells, cisterns, private reservoirs and ponds. This suit was brought by over 50 parties who reside or conduct institutions (including a hospital) in the area. Their proof (some of it irrelevant) clustered around three competent salients, (1) lowering of the 'water table' likely to result from drainage of underground waters, by force of gravitation, to and out of the fact of the quarry when the rock formations are cut open, (2) damage to the natural water supply through disturbance, by the use of explosives at the quarry, of underground barriers that now serve to impound the water, and (3) disruption of the peace and quiet by vibrations from blasting.
With respect to the possible depletion of neighboring water wells merely by the process of excavating, or cutting openings through which percolating waters might escape and thus 'bleed' the supply from surrounding lands, it is doubtful that there could be a cause of action in view of the rule that the owner of land, when putting it to a legitimate and not otherwise unreasonable use, 'is not liable to the owner of adjoining land for injuries to wells or springs fed by hidden underground streams flowing in unknown channels or percolating waters.' Cf. United Fuel Gas Co. v. Sawyers, Ky.1953, 259 S.W.2d 466, 468, 38 A.L.R.2d 1261, 1264. 1 If, on the other hand, wells are polluted or depleted (or any other damage done) by a shaking of the ground, the law heretofore has been that there is no cause of action in the absence of negligence in the performance of the blasting operation. Marlowe Construction Company v. Jacobs, Ky.1957, 302 S.W.2d 612. If that rule is applied to this case there can be no injunction, because no one can say in advance that there will be negligence, and without it the thing that is threatened (even if it will cause damage) would not be a wrong.
We have concluded, however, that the rule of nonliability for damage by concussion or vibration without negligence is inconsistent with the principles set forth in Louisville Refining Company v. Mudd, Ky.1960, 339 S.W.2d 181, for the determination of what is a nuisance. In that case we abandoned the theory that a 'reasonable' (in the sense of non-negligent) use of property cannot be a nuisance, in favor of the principle that in the light of all the circumstances of a case a use that is otherwise 'reasonable' may be rendered unreasonable by the gravity of its effect upon the use and enjoyment of other property.
The testimony of plaintiffs' geologist on the probable underground effects of blasting was not related to size of charge, method of shooting, or...
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