Brede v. Minnesota Crushed Stone Company
| Decision Date | 23 July 1920 |
| Docket Number | 21,941 |
| Parties | MARTIN H. BREDE AND OTHERS v. MINNESOTA CRUSHED STONE COMPANY |
| Court | Minnesota Supreme Court |
Petition for Rehearing Filed, October 22, 1920
After the former appeal reported in 143 Minn. 374, 173 N.W. 805 further testimony was taken before Hale, J., who made findings and ordered judgment as set out in the second paragraph of the opinion. From that portion of the judgment mentioned, plaintiffs appealed. Affirmed.
Regulation of methods of quarrying stone not warranted by evidence.
1. The facts stated in the opinion do not entitle plaintiffs to a judgment regulating the methods to be employed by defendant if, in the future, it should quarry stone on land where it was not quarrying when the action was commenced and heard.
Regulation of method of blasting justified by evidence.
2. The evidence sustains the findings relating to defendant's operations in blasting, and supports the conclusions of law prescribing the methods to be adhered to in conducting such operations.
Law of the case.
3. The law of the case was settled by the decision rendered on the former appeal. Brede v. Minn. Crushed Stone Co. 143 Minn. 374.
Modification of judgment in respect to use of steam shovels.
4. Noises caused by defendant's use of steam shovels in handling stone are not of such a character as to require a modification of the judgment. Not every discomfort arising from operations on adjacent property justify an injunction.
Control of dust sufficient for protection of plaintiffs.
5. The provisions of the judgment for the control of dust caused by defendant's operations will adequately protect the plaintiffs from that source of annoyance.
Refusal to reopen case to take additional testimony sustained.
6. There was no error in the denial of plaintiffs' application for a reopening of the case to permit the introduction of additional evidence.
Disbursement not taxable.
7. The cost of a transcript of the evidence, used on plaintiffs' motion for amended findings, was not taxable.
October 22, 1920.
Judgment modified.
8. Judgment modified to include quarrying on the Lowry tract, except that rights acquired by defendant from any of plaintiffs in respect thereto (see original findings) shall not be affected by such modification. [Reporter.]
A. B. Jackson, for appellants.
James E. O'Brien, for respondent.
This is the second appearance of this case, On the first appeal an order denying plaintiffs' motion for a new trial was reversed with directions to the district court to take further testimony on certain features of the case. Brede v. Minn. Crushed Stone Co. 143 Minn. 374, 173 N.W. 805. Further testimony was taken and additional findings were made and judgment was entered thereon in plaintiffs' favor after their motion for further and amended findings had been denied. They have appealed from portions of the judgment hereafter referred to.
1. The judgment enjoins the defendant from using steam drills in quarrying on the Kletzin land. Electric power must be substituted for steam to do away with the noise of the steam exhaust. In blasting the upper benches of stone on this land not more than four drill holes may be charged with dynamite and set off in a single blast, and not more than 24 pounds of 40 per cent dynamite may be used in a blast, with a proportionate decrease if less than four holes are charged. In the lower benches eight drill holes may be charged for a single blast, with not more than 24 pounds of 50 per cent dynamite, to be proportionately decreased if a less number of holes are charged.
These portions of the judgment are attacked by plaintiffs. They contend that, if defendant is to be allowed to use drills and dynamite at all, no distinction should be made between the operations on the Kletzin land and on its other land, known as the Lowry tract. Defendant was quarrying only on the Kletzin land when the action was commenced and when each hearing was had in the court below. As indicated in our previous opinion, there is a possible difference with respect to its rights in conducting its operations on the two tracts. That question was left open. It will not arise unless defendant should resume operations on the Lowry land and conduct them in a manner prohibited by the judgment. We see no occasion for modifying the judgment in this particular.
2. Plaintiffs' principal complaint is that the noise and vibrations caused by blasts, such as the judgment permits, are not appreciably less than they were before. They assert that the blasting is the pith of the whole case, and that it ought to be stopped. The trial court found that the charges of dynamite above specified contain the least amount of explosive necessary to remove stone from the quarry; that the defendant is using smaller charges of dynamite than formerly; that the noise and jarring effects of the blasts have been reduced to some extent, and that, by continuing to use the quantities specified, defendant will have done all that can be done to reduce noise and vibrations, if it is to be permitted to continue to operate its quarry. These findings rest on the testimony of E. P. McCarthy, a mining engineer, who for a considerable time observed defendant's methods of blasting. In substance his testimony was that the methods have been changed since the first hearing. At his suggestion, moist sand has been substituted for dry sand in tamping the drill holes and a larger quantity of sand is being used. The blasts are set off from four to six times each working day between 9 a.m. and 4 p.m. There has been a reduction of 10 per cent in the amount of explosive in the dynamite now used. The sound of the blasts carries approximately 600 feet and is no louder than the report made by a blowout in an automobile tire. Since the methods recommended by McCarthy have been adopted "pop shots" are unnecessary. They were used to break up large fragments of rock, light charges of dynamite being employed. They were frequent when the earlier method of blasting was practiced. Under present methods the blasts are muffled and there are no "windy shots," that is, explosions which cause pieces of rock to fly up in the air. The explosive energy is confined to the layers of rock. This causes more vibration in the ground. The stone cannot be gotten out of the quarry without blasting.
With respect to the jarring effects or earth vibrations caused by the blasts, defendant introduced the testimony of one Volaseck, who is connected with the State University and has made a special study of the measurements of earth vibrations using an instrument invented for that purpose. He made a record of the vibrations which followed blasts set off since the improved methods were adopted. Two were made at the house of one of the plaintiffs who lives...
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