Blackford v. Heman Construction Company

• Citation: 112 S.W. 287,132 Mo.App. 157
• Parties: BLACKFORD, Respondent, v. HEMAN CONSTRUCTION COMPANY et al., Appellants
• Decision Date: 23 June 1908
• Court: Court of Appeal of Missouri (US)

112 S.W. 287

132 Mo.App. 157

BLACKFORD, Respondent, v. HEMAN CONSTRUCTION COMPANY et al., Appellants

Court of Appeals of Missouri, St. Louis

June 23, 1908

Appeal from St. Louis City Circuit Court.--Hon. Jesse A. McDonald Judge.

AFFIRMED.

Judgment affirmed.

Hickman P. Rodgers for appellant.

(1) Plaintiff was not entitled to the relief prayed in his petition, because: On the face of his petition, and under the testimony in the case he was guilty of gross laches. 18 Am. and Eng. Ency. Law (2 Ed.), p. 97 and note 4. (2) The decree is too general; and is so worded as to unnecessarily infringe defendants' rights in the premises. Schaub v Construction Co., 108 Mo.App. 122; McMenomy v. Band, 87 Cal. 134.

Thomas G. Rutledge for respondent.

(1) A nuisance, if continued, becomes a fresh nuisance every day and authorizes new suits accordingly. It is a new nuisance every day it continues to remain unabated. Neither the Statute of Limitations nor the doctrine of laches applies to continuing nuisances. No one can acquire a right to maintain a nuisance by license or prescription. A person can even come or move to a nuisance with a knowledge of its existence, and then abate it. Paddock v. Somes, 102 Mo. 226; McCowan v. Railroad, 23 Mo.App. 203; Cooley on Torts (1 Ed.), 738; 21 Am. and Eng. Ency. Law, p. 691; 18 Am. and Eng. Ency. Law, 121, 122; Hurlburt v. McKone, 55 Conn. 31; Powers v. Railroad, 158 Mo. 87; Schlitz Brewing Co. v. Compton, 142 Ill. 511. (2) Vibrations, jarring of the house, and the noises and dust are alone such an interference with the respondent's rights as the court will enjoin, irrespective of the question of damages. Kirchgraber v. Lloyd, 59 Mo.App. 59; Redd v. Colton Mills, 136 N.C. 342; Friedman v. Iron Co., 91 N.Y.S. 129; Railroad v. Goll, 100 Ill.App. 323; Hennessey v. Carmody, 50 N.J.Eq. 616; Demarest v. Hardham, 34 N.J.Eq. 469; Dennis v. Eckhart, 3 Grant 302; Wood on Nuisance, p. 835, par. 619.

NORTONI, J. Bland, P. J., and Goode, J., concur.

OPINION

NORTONI, J.span>

This is an action in equity, seeking injunctive relief against the operation of a quarry alleged to be a private nuisance. The circuit court decreed a perpetual injunction and the defendants appeal. The quarry is situated in the very heart of the city of St. Louis. Its precise location is on a plat of ground fronting 250 feet on the north line of Forest Park Boulevard, by about 187 feet north therefrom to an alley; the west line of said plat of ground is about 130 feet east of Spring avenue. The north one-half of said block on which the quarry is situated, is occupied by numerous family residences. Plaintiff owns a lot of ground upon which his residence, No. 3670 Laclede avenue, is located. It fronts about twenty-five feet on the north line of Laclede avenue and extends south therefrom about 187 feet to a twenty-foot alley, passing between his property and that of defendants' upon which is located their quarry. Plaintiff's residence consists of a two-story brick dwelling house of nine rooms, valued at $ 9,000. The rear of his dwelling is about 130 feet from the north side of the opening of the quarry. On the rear of plaintiff's lot is a shed with the roof constructed of tar and gravel. Plaintiff had owned and occupied his residence about eleven years before the institution of this suit. The defendants' quarry has been in operation about ten years. The limestone therein lies in ledges varying from four to eight feet in thickness. At the date of the institution of this suit, the quarry had attained a depth of about 110 feet. Giant powder and dynamite are constantly used therein for blasting heavy ledges of rock. The evidence tended to prove that for some time recently before the institution of the suit, several heavy blasts were discharged therein daily except Sundays, many of which occasioned stones, some as much as nine inches in diameter, to ascend far above the earth and fall upon the property of plaintiff and his neighbors. The tar and gravel roof of the shed on plaintiff's property has been entirely destroyed by stones falling thereon from the quarry. A number of times stones have fallen upon and about his house, one of which lodged in the fork of a small tree about four inches in diameter, and split it to the earth. On numerous occasions stones have fallen so near members of his family about the premises as to threaten their safety. One of his neighbors testified to a stone having fallen through a skylight and into the room of his residence in which he was sitting. Others testified to stones having fallen in Laclede avenue, as much as two hundred feet away from the quarry. Others gave evidence of stones having fallen on their houses and about their yards in the same block. A painter engaged at his trade in the block, testified to having received an injury to his leg from a stone falling after a blast at the quarry. Plaintiff and others testified as to their several properties being jarred and shaken from the heavy explosions incident to the blasting; that three bricks were jarred loose and fell from the cornice of plaintiff's house; that the mortar had been jarred loose because of the severe vibrations and fallen from between the bricks in the walls of his residence; great sheets of plastering had been jarred loose and fallen in the rooms of his residence as was the case with respect to several other residences as well. Numerous witnesses testified to the extreme noise from the explosions. One, a sergeant of police, residing in the block, who was on duty at night and slept in the daytime, testified to being frequently awakened thereby; and the plaintiff and his neighbors gave evidence to the effect of extreme nervous shocks causing them to quiver and jump when some of the explosions took place. It appeared that the paper on the walls of residences in some instances was cracked because of the vibrations of the earth therefrom, and that dishes on the table and in the closet as well as windows of the houses, were frequently rattled and jarred. In connection with the quarry, defendants maintain a plant for the crushing of stone on the same plat of ground. This plant appears to be two stories high, is equipped with heavy machinery appropriate to the purpose, and when in operation, creates a fine dust resulting from the crushing of limestone. This dust is constantly being blown by the wind into the residence of plaintiff and his neighbors, accumulates on the dishes, on the carpets, curtains and furniture, and operates as a source of annoyance and discomfort. When the house is closed, it percolates around the windows and doors. To add to this discomfort, noxious gases and noisome odors are almost constantly emitted from the prosecution of the quarry and stone-crusher, permeating the atmosphere in and about the residence of the plaintiff and his neighbors. It also appears that besides the dangers and discomforts mentioned, the plaintiff's property has been depreciated in value to the extent of twenty-five per cent.

The court decreed a qualified injunction. The defendants and each of them were perpetually enjoined from so operating their quarry, or permitting the same to be so operated, as to: first, throw rocks and stones on the plaintiff's lot; second, as to jar the buildings on plaintiff's said lot or cause the same to shake and vibrate; or third, to destroy or impair the comfortable use and occupancy of such buildings by loud and deafening explosions and sounds produced in the quarry; and fourth, from so operating their stone crusher had in connection with the quarry or permitting the same to be so operated as to cause a fine limestone dust to fly from said machine across plaintiff's lot and settle in his residence.

It is said by Mr. Wood in his excellent work on Nuisances (3 Ed.) sec. 140, that the blasting of rock by the use of giant powder and other explosives in the vicinity of another's dwelling house, is a nuisance where the blasting is negligently done. There is no proof of negligence in this case unless such may be inferred from the loud and severe explosions. Be this as it may, the case falls within the rule with respect to the employment of dangerous explosives in a large city. There are numerous authorities to the effect that where explosives, as in this case, are employed for blasting purposes contiguous to another's property in a large city such must be regarded as an unreasonable, unnatural and unusual use of his property. Such unreasonable use of property to the substantial impairment of the rights of another, will authorize either injunctive relief as against a nuisance, or an action at law for resulting damages, even though the calling is entirely lawful and it is prosecuted with the utmost care and skill. In such circumstances, the question of negligence is entirely beside the case. Although defendants have, beyond a doubt, the right to quarry stone on their property, the plaintiff enjoys the right to undisturbed possession of his home. If these rights conflict, the right to operate the quarry must yield to the latter, which, in the eye of the law, is the more important of the two, for upon grounds of public policy, it is better that one man should surrender a particular use of his land than that another should be deprived of the beneficial use of his property altogether, which would result, if the privilege of the quarry should be wholly unrestricted. Even in the absence of negligence, throwing stone or soil upon the property of another as a result of blasting, amounts to an actual trespass. [Colton v. Onderdonk, 69 Cal. 155, 10 P. 395, 10 P. 398; Hay v. The Cohoes Co., 2 N.Y. 159; Tremain v. The Cohoes Co., 2 N.Y. 163; Fitz Simons v. Braun, 199 Ill. 390, 65 N.E. 249; Tiffin v. McCormack, 34 Ohio St. 638; ...