Benton v. Kernan, 245.

• Decision Date: 18 September 1941
• Docket Number: No. 245.,245.
• Citation: 130 N.J.Eq. 193,21 A.2d 755
• Parties: BENTON et al. v. KERNAN et al.
• Court: New Jersey Supreme Court

21 A.2d 755

130 N.J.Eq. 193

BENTON et al.

v. KERNAN et al.

No. 245.

Court of Errors and Appeals of New Jersey.

Sept. 18, 1941.

Syllabus by the Court.

1. Held, under the circumstances of this case, complainants are entitled to an injunction against quarry blasting that causes physical damage to their properties and that causes stones to be thrown on their promises, but not against blasting that merely jars, vibrates or shakes their buildings without physical damage thereto.

2. To justify the enjoining of the prosecution of a perfectly legal business on account of the noise made in conducting it, the evidence should be clear and convincing.

3. Noise sufficient to enjoin the operation of a business must be such as to affect injuriously the health or comfort of ordinary people in the vicinity to an unreasonable extent, and must pass the limits of reasonable adjustment to the conditions of the locality and of the needs of the maker to the needs of the listener.

4. Held, the evidence in this case justifies the enjoining of the operation of a plant for the mixing of paving material that gives off offensive and noxious odors, day and night, disturbing the neighbors in the enjoyment of their homes, interfering with their sleep and causing nausea.

5. An injunction against operation of trucks on the public streets in front of complainants' homes was properly refused.

6. There was no abuse of discretion in the denial of a counsel fee to the complainants.

7. Landlord was a proper party to an Injunction restraining the operation of certain features of a quarry, where it appeared that the premises were leased to the operator for the purpose to which they were devoted.

CASE, J., dissenting in part.

Appeal from Court of Chancery.

Suit by Mary Benton and others against Elizabeth G. Kernan and others for injunction against maintenance of a nuisance. From a decree granting injunction, 127 N. J.Eq. 434, 13 A.2d 825, defendants appeal, and from portion of decree and from order denying their application for counsel fees, 127 N.J.Eq. 516, 14 A.2d 769, complainants cross-appeal.

Cause remanded for modification of decree in accordance with opinion.

Milton, McNulty & Augelli and Joseph Keane, all of Jersey City, for defendants-appellants Elizabeth G. Kernan, individually and as executrix, Louis Kernan and Kern-O-Mix, Inc.

Stanley L. Gedney, Jr., and Miles M. Messinger, Jr., both of East Orange, for defendants-appellants Mary Kernan and Savings Investment & Trust Co., Trustees.

Israel B. Greene, of Newark, for complainants-respondents.

DONGES, Justice.

This is an appeal from a decree of the Court of Chancery imposing certain restraints upon the defendants in the operation of their stone quarry in the neighborhood of complainants' homes in South Orange. Preliminary restraint was granted (125 N.J.Eq. 412, 6 A.2d 195) and was modified by this court (126 N.J.Eq. 343, 8 A.2d 719). After final hearing the decree now under review was advised.

The evidence is reviewed in detail in the opinion of the Vice Chancellor, 127 N.J. Eq. 434, 13 A.2d 825, and need not be repeated at length here. The general situation presented is that this quarry, established some thirty-three years ago and in practically continuous operation since, uses dynamite or other explosive in the reduction of the natural rock and the blasts vibrate the homes of the residents in the vicinity and, it is claimed, cause physical damage thereto. Respondents complain that the operation, both by the blasting and the crushing of the rock, causes annoyance and disturbance to the residents in the vicinity; that, since the fall of 1935, the operation of a plant for the mixture of paving material, known as Kern-O-Mix, installed at that time, has produced noxious and offensive gases and odors and caused vibration of respondents' homes, and caused them annoyance and disturbed enjoyment of their homes.

Respondents also sought restraint of the operation by appellant of trucks on the public highway passing their homes. This relief was denied as well as the allowance of counsel fees, from which refusal complainants appeal.

The decree restrains blastings that jar, vibrate or shake respondents' buildings; cause stones to be thrown on their premises; or cause such noise as will occasion a nuisance, disturbance or annoyance to respondents or their families; operating machinery with such noise as to occasion nuisance, disturbance or annoyance to the parties; dropping crushed rock into bins, trucks or hoppers of the crusher so as to occasion nuisance, disturbance or annoyance; operating a steam whistle (which seems to have been discontinued); operating the Kern-O-Mix to permit offensive odors, vapors or gases to be emitted from the plant, or from the trucks conveying this product past the homes so as to be a nuisance, disturbance or annoyance, and from doing anything that may render the air unwholesome, uusanitary or uncomfortable; and from operating the Kern-O-Mix plant with such noise and vibration as to occasion a nuisance, disturbance or annoyance; and from carrying on the Kern-O-Mix manufacture and sale on the quarry grounds and requiring the moving of that plant; and giving time to make changes in the quarry machinery and equipment to eliminate the noises complained of.

We consider first that portion of the decree which contains restraints against blasting. We think it clear that respondents are entitled to restraint against blasting which causes such severe jarring, vibration and shaking of the respondents' homes as to cause physical damage thereto, such as is testified to have occurred in this case, and against blasting that causes stones to be thrown on their premises. But we are of the opinion that an injunction against all jarring, vibration and shaking of respondents' homes goes beyond the relief to which they are entitled. In the case of Hennessy v. Carmony, 50 N.J.Eq. 616, 25 A. 374, relied upon in the court below, the vibration which was enjoined was severe enough to "cause walls to crack" as well as to cause other annoyance, and we find that case no authority for an injunction against vibration of insufficient severity to cause physical injury.

In Wallace & Tiernan Co., Inc., v. United States Cutlery Co., 97 N.J.Eq. 408, 128 A. 872, affirmed 98 N.J.Eq. 699, 130 A. 920, an injunction was granted against the vibration of complainant's factory building by machinery in the factory of the defendant. The situation there was that the complainant, in the operation of its factory, used delicately adjusted appliances and was seriously hampered in the use of these appliances by the vibration and thereby was deprived of the full enjoyment and use of its property that it had before the defendant installed the machinery which caused the vibration. That case is not analogous to the one under review.

A number of cases are cited from other jurisdictions wherein injunctions against blasting by quarries that caused vibration of complainants' properties was sustained, namely, Blackford v. Heman Const. Co., 132 Mo.App. 157, 112 S.W. 287; Barrett v. Vreeland, 168 Ky. 471, 182 S.W. 605; Fagan v. Silver, 57 Mont. 427, 188 P. 900; Lademan v. Lamb Construction Co., Mo. App., 297 S.W. 184; and Rogers v. Gibson, 267 Ky. 32, 101 S.W.2d 200. In only one of these cases, however, was a distinction sought to be made between vibration or jarring that would cause physical damage and less severe vibration. In Blackford v. Heman Construction Co., supra, the defendants complained of this rigid restraint, contending it would prevent all operation of the quarry. The appellate court said [132 Mo.App. 157, 112 S.W. 291]: "The argument must be examined with respect to the facts in proof. * * * By reference to the facts upon which the decree is given, it appears the vibrations from unusual explosions caused plastering to fall from plaintiff's ceiling, bricks to work loose and fall from the cornice of his house, and the mortar to crumble from between the bricks in the walls. It therefore appears the vibrations contemplated by the decree entailed a substantial injury to the plaintiff's property." So, it would seem in that case, the appellate court's construction limited the injunction to one against blasting that caused physical damage. We think that in the case under consideration the injunction against blasting should enjoin only such blasting that so shakes and vibrates complainants' properties as to cause physical damage thereto and causes stones to be thrown on the properties.

As stated, the decree also granted an injunction against operating the rock crusher, steam engine, drills and other machinery, with such noise as to "occasion a nuisance, disturbance, or annoyance to any of the complainants and their families in the enjoyment of their respective houses and grounds upon which they stand"; also from dropping crushed rock from bins into trucks, loading trucks, and dropping rock into the hopper of the crusher, with such noise as to occasion a nuisance, disturbance or annoyance to the complainants.

Complaint is made that this restraint is too indefinite, and much may be said in support of that contention since the restraint depends upon the degree of noise that would annoy the complainants and the members of their families, a group numbering more than one hundred persons, presumably of varying sensibilities. However, our determination of this phase of the case need not rest upon this ground.

There have been a number of cases in this jurisdiction where injunctions against noise have been allowed. In Seligman v. Victor Talking Machine Co., 71 N.J.Eq. 697, 63 A. 1093, affirmed, 72 N.J.Eq. 946 73 A. 1118, an injunction was sustained prohibiting noises...