Benton v. Kernan

• Decision Date: 16 October 1939
• Docket Number: No. 228.,228.
• Citation: 8 A.2d 719,126 N.J.Eq. 343
• Parties: BENTON et al. v. KERNAN et al.
• Court: New Jersey Supreme Court

8 A.2d 719

126 N.J.Eq. 343

BENTON et al.

v. KERNAN et al.

No. 228.

Court of Errors and Appeals of New Jersey.

Oct. 16, 1939.

Appeal from Court of Chancery.

Suit by Mary Benton and others against Elizabeth G. Kernan, individually and as executrix of the estate of Michael Kernan, deceased, and others, to restrain defendants from operating a stone quarry in such manner as to constitute a nuisance. From an interlocutory restraining order advised by the Vice Chancellor, 125 N.J.Eq. 412, 6 A.2d 195, defendants appeal.

Other modified and, as modified, affirmed and cause remanded for further proceedings.

Bilder, Bilder & Kaufman, of Newark, (Nathan Bilder and Samuel Kaufman, both of Newark, of counsel), for appellants Elizabeth G. Kernan, Louis Kernan, and Kern-OMix, Inc.

Merritt Lane, of Newark, for respondents.

HEHER, Justice.

We are constrained to modify the challenged order by the deletion of the provision enjoining appellants from "operating" their "quarry property and business * * *, or any part or branch" thereof, "in such manner as to cause, by blasting of stone, the houses of complainants, or any of them, or any part or parts of their houses, to vibrate * * *."

At the outset, it would seem that an injunction against any and all vibration, irrespective of ensuing damage to respondents, plainly goes beyond fair protective needs, and constitutes an invasion of appellants' property rights. Indeed, it would prevent the operation of the quarry, for it is inconceivable that this business could be prosecuted without the transmission at times of some degree of vibratory force to adjacent lands.

But however this may be, an interlocutory restraint so sweeping, even though in some cases it may reasonably be deemed necessary to protect against actual injury, should not issue unless from the pressure of an urgent necessity, i.e., to prevent pendente lite threatened injury of an irreparable character; and, where the material allegations of fact essential to create an equity in complainants' favor are met by a full, explicit and circumstantial denial under oath, such injunctive process is awarded only in exceptional cases. Citizens' Coach Co. v. Camden Horse R. Co., 29 N.J.Eq. 299; Delaware, L. & W. R. Co. v. Central Stock-Yard & Transit Co., 43 N.J.Eq. 77, 10 A. 602, affirmed 43 N.J. Eq. 605, 12 A. 374, 13 A. 615; Hagerty v. Lee, 45 N.J.Eq. 255, 17 A. 826; Simmons v. Paterson, 60 N.J.Eq. 385, 45 A. 995, 48 L.R.A. 717, 83 Am.St.Rep. 642; McMillan v. Kuehnle, 78 N.J.Eq. 251, 78 A. 185; Meyer v. Somerville Water Co., 79 N.J.Eq. 613, 82 A. 915; Brunetto v. Town of Montclair, 87 N.J.Eq. 338, 100 A. 201; Kearny v. Bayonne, 92 N.J.Eq. 627, 114 A. 550; Helbig v. Phillips, 105 N.J.Eq. 328, 147 A. 787, affirmed 107 N.J.Eq. 138, 152 A. 919; Ideal Laundry Co. v. Gugliemone, 107 N.J. Eq. 108, 151 A. 617; Kellett v. Local No. 274, &c, 114 N.J.Eq. 107, 168 A. 265; Bayonne Textile Corp. v. American Federation of Silk Workers, 116 N.J.Eq. 146, 172 A. 551, 92 A.L.R. 1450; Sneath v. Lehsten, 120 N.J.Eq. 327, 185 A. 55; West Jersey R. Co. v. Cape May & Schellenger's Landing R. Co., 34 N.J.Eq. 164; Nowak v. Baier, 78 N.J.Eq. 112, 77 A. 1062; Spoor-Thompson Machine Co. v. Bennett Film Laboratories, &c, 105 N.J.Eq. 108, 147 A. 202.

The essential function of the preliminary injunction is to avert such threatened irreparable mischief until an opportunity is afforded for a full and deliberate investigation of the case in the ordained mode. Thompson v. City of Paterson, 9 N.J.Eq. 624, 625; Meyer v. Somerville Water Co., supra; Brunetto v. Town of Montclair, supra; Rissler v. Plumbers Local No. 326, &cÆ109 N.J.Eq. 91, 156 A. 498; State v. Du Pont de Nemours Powder Co., 79 N. J. Eq. 31, 80 A. 998. It will not be amiss to direct attention again to the admonition of Chief Justice Beasley in the Citizens' Coach Company case, supra, quoting from Bonaparte v. Camden & Amboy R. Co., Baldw. 205, 217, Fed. Cas. No. 1617: "There is no power, the exercise of which is more delicate, which requires greater caution, deliberation and sound discretion, and which is more dangerous in a doubtful case, than the issuing of an injunction."

We do not deem applicable the principle invoked by the learned Vice Chancellor that the interlocutory injunction may issue for the "protection of one's dwelling-house against nuisances which render it uncomfortable, * * * even when the existence of the nuisance is disputed"—citing Cronin v. Bloemecke, 58 N.J.Eq. 313, 43 A. 605, 606. There the injunction was directed to certain incidents of the conduct of baseball games on grounds adjacent to complainant's dwelling house, such as the frequent dropping of balls upon complainant's premises and damages resulting from trespasses in their recovery; and the vice chancellor, in holding that in respect thereto defendants' affidavits did "not fully meet complainant's case", and the proofs made out "a prima facie case of serious annoyance" entitling complainant "to a proper protection against the continuance thereof, pending the final hearing", was careful to point out, as a circumstance making "the case one proper for preliminary injunction", that the writ "can be directed in a form which will not interfere with the games, if lawfully carried on." This distinguishing feature is not present here as...