Brede v. Minn. Crushed Stone Co.

• Decision Date: 01 August 1919
• Docket Number: No. 21248.,21248.
• Citation: 173 N.W. 805,143 Minn. 374
• Parties: BREDE et al. v. MINNESOTA CRUSHED STONE CO.
• Court: Minnesota Supreme Court

143 Minn. 374

173 N.W. 805

BREDE et al.

v.MINNESOTA CRUSHED STONE CO.

No. 21248.

Supreme Court of Minnesota.

Aug. 1, 1919.

Appeal from District Court, Hennepin County; Fish, Judge.

Action by Martin H. Brede and others against the Minnesota Crushed Stone Company, a corporation. There was a finding for defendant, and, motion for new trial having been denied, plaintiffs appeal. Reversed, with directions.

Syllabus by the Court

When the undisputed evidence shows substantial interference with the comfort of residents in the vicinity of a stone quarry, caused by blasting and dust, they are entitled to some relief in an action brought to restrain the defendant from operating the quarry in such a manner as to constitute a nuisance.

If a lawful business is conducted in such a manner as to interfere materially with the physical comfort of persons of ordinary sensibilities and habits, who live near by, an injunction should be granted, permanently restraining its operation in such manner. A comparison of the injury defendant will suffer if an injunction is granted with the injury plaintiffs will suffer if it is denied does not furnish the test by which the action of the court should be controlled.

The defense of laches is not available where for about two years plaintiffs have refrained from taking any action to restrain defendant from continuing to operate its quarry in the manner complained of and it has expended a large sum of money in making permanent improvements on the property where it conducts its business.

A request that defendant quarry upon a certain portion of its premises is at most a license from those signing it, and is subject to revocation.

A distinction may properly be drawn between cases involving a nuisance, caused by a factory or business which may be removed to another location, and those involving one caused by the operation of mines, quarries, and other enterprises for the development of the natural resources of land which must be conducted at a fixed place. An injunction should not be granted as readily in the latter as in the former class of cases.

Ao great weight should be given to the fact that a person complaining of a nuisance came to it, or that others may be guilty of maintaining a similar nuisance in the same neighborhood.

A landowner may be liable for maintaining a nuisance by reason of his mode of carrying on a lawful business, even though the annoyances complained of are ordinary incidents of such a business when properly conducted.

Further testimony should be taken to determine whether defendant may not remove or mitigate the annoyances complained of without seriously interfering with the prosecution of its business and such relief afforded to plaintiffs as may be justified by the additional evidence produced. A. B. Jackson, of Minneapolis, for appellants,

Cohen, Atwater & Shaw, of Minneapolis, for respondent.

LEES, C.

Alleging that defendant was operating a quarry in such a manner as to create a private nuisance as to them, plaintiffs brought this action to enjoin the alleged nuisance. There was a trial without a jury, findings in favor of defendant, a motion for a new trial, which was denied, and the case comes here on appeal from the order denying the motion.

In substance these were the facts as found by the trial court:

In 1904 defendant acquired the right to quarry and crush limestone underlying 40 acres of land in Lowry's East Side addition to Minneapolis. Johnson street was its west boundary. The tract had been platted into lost and blocks, but was then wholly unoccupied. Defendant began quarrying operations thereon in 1904, which were continued until the summer of 1916. Later it acquired 9 acres adjoining the 40 on the north. This is referred to as the ‘Kletzin’ tract.

In quarrying, the defendant proceeds as follows: The earth and a stratum of shale are removed or stripped from the layers of limestone in which holes are drilled with steam drills, and the stone is then blasted with dynamite. Fragments too large to handle conveniently are broken up by light charges of dynamite, and the stone is then loaded by a steam shovel into small cars and conveyed to a crusher on Johnson street. There the stone is crushed and separated into various sizes and sole for commercial uses. Railway trackage connects the property with the reailways in Minneapolis.

When these operations were commenced there were few dwellings in the neighborhood, and no street car lines in the region. Now the region north and west of the quarry is fairly well settled; 32 of the plaintiffs residing within distances varying from 200 to 1,800 feet. They acquired their property for homes. A street car line on Johnson street runs out beyond the quarry. In the region south and east of the quarry there are hardly any dwellings. It is devoted in the main to industrial uses and traversed by railroad tracks. West of defendant's quarry and within 300 feet of Johnson street there is another quarry operated by another company substantially as defendant's is operated. Defendant's land is mainly valuable for the underlying limestone.

In the three years immediately following 1904, several actions were brought against defendant by property owners in the vicinity of the quarry, who claimed to be damaged by defendant's operations. These actions were settled in October, 1907, by the payment of damages. Embodied in each settlement was a release of future damages which might accrue from quarrying operations in Lowry's East Side addition. Three of the plaintiffs in the present action and the predecessors in title of two of them made such settlements and gave such releases.

In the spring of 1915, defendant began to quarry on the Kletzin tract. Objections were made by a number of the residents on Johnson street, and the operations there were discontinued and resumed in Lowry's East Side addition.

In the spring of 1916, a written request addressed to defendant was circulated among the residents in the neighborhood of the quarry, and was signed by or in behalf of 14 of the present plaintiffs. Defendant was thereby requested ‘to quarry the stone from the foregoing property (the Kletzin tract), using the utmost care in blasting, and refill same as soon as possible.’ On receiving this request in 1916, defendant again began and has since continued to quarry stone on the Kletzin tract, thus bringing its operations farther north and nearer to the dwellings of many of the plaintiffs.

In 1914, defendant began to grind the screenings from its quarry for use as a filler for asphalt paving. In 1915 and 1916, it installed and has since operated a pulverizing plant, known as a ‘dust mill,’ to grind part of the product of its quarry to such fineness that it may be sprinkled on fields having an acid soil to neutralize the acids.

By the spring of 1916, defendant had invested in its buildings and equipments about $100,000. In November, 1917, its crusher was destroyed by fire. In January, 1918, it began to rebuild it, and had half completed it at the time of the commencement of this action, and had expended for that purpose and for manchinery over $44,000. In order to rebuild, it was necessary that defendant should obtain a permit from the building inspector spector of Minneapolis. Plaintiffs and others, on learning that defendant intended to rebuild, petitioned the city council to deny a permit, but the council refused to interfere, and the permit was issued by the inspector.

The decision of the trial court turned upon the twelfth finding of fact, which, in substance, is as follows: Defendant's operations caused some discomfort and annoyance to the plaintiffs residing nearest to the quarry, from the noises and vibrations created by the drills and steam shovels, by blasting, and from some increase of dust emanating from the dust mill. The consequences of the noise and dust are greatly exaggerated by the testimony, and are naturally an incident to defendant's development and use of its property. An injunction against the operation of the quarry would destroy defendant's business, and make its investment in buildings and equipment largely worthless, but the situation and surroundings are such that the cessation of its business would not add materially to the health or comfort of plaintiffs or to the free use and enjoyment of their property. In a memorandum appended to the findings, the court remarked that the injunction must be either wholly given or wholly denied, no middle course being open, and that ‘there is enough merit in plaintiffs' contention to require on defendant's part the utmost care to avoid unnecessary harm to neighboring property.’

1. We have examined the voluminous record with care to ascertain whether this finding is sustained by the evidence. There is but little real conflict in the evidence. A host of witnesses, most of them parties plaintiff or members of their families, testified to substantial interference with the comfort of residents in the vicinity of the quarry, caused chiefly by blasting and by dust from the dust mill. After making due allowance for many evident exaggerations in the testimony, the fact remains and is recognized in the findings, that defendant's operations do cause appreciable annoyance and discomfort to plaintiffs. That there was noise and dust is not disputed. The testimony of defendant's witnesses who resided near the quarry was that they did not find the noise and dust objectionable; some of them, because they had become accustomed to it. The explosions of dynamite and consequent jarring of plaintiffs' dwellings of necessity disturbed the comfort and repose of persons living near the quarry, especially when they were accompanied, as was sometimes the case, by a shower of falling...