Ex parte Birmingham Realty Co.

• Decision Date: 30 June 1913
• Citation: 63 So. 67,183 Ala. 444
• Parties: Ex parte BIRMINGHAM REALTY CO.
• Court: Alabama Supreme Court

63 So. 67

183 Ala. 444

Ex parte BIRMINGHAM REALTY CO.

Supreme Court of Alabama

June 30, 1913

Certiorari to Court of Appeals.

Certiorari by the Birmingham Realty Company to review the opinion in the Court of Appeals in the case of the Birmingham Realty Company against R.E. Thomason (63 So. 65). Writ denied.

The Court of Appeals affirmed the judgment of the trial court in this case, and the appellant seeks by writ of certiorari to review that decision. It is complained that under the decision of this court the Court of Appeals erred in holding the overruling of defendant's demurrer to the second count of the complaint to be without error, and also for its failure to give the general affirmative charge for defendant.

The second count is as follows, after alleging the residence of plaintiff and his family, and the location of the garden and outbuildings on the premises: "That the defendant through its servants and agents, acting within the line and scope of their authority, under their employment by defendant, beginning on, to wit, the 1st day of August, 1907 and on divers other dates since said date, up to and including the present time, has been engaged in blasting stone and other substance near said premises, said servants or agents of plaintiff so acting within the line and scope of their authority under their said employment, knowing that the blasting of rock, stone, and other substances near said premises as they were doing would greatly frighten plaintiff and endanger his life, and frighten and endanger the lives of his family, would damage his live stock, gardens, premises yards, houses, and poultry by casting on plaintiff's said dwelling house, outhouse, stable, lot, garden, and yard, so located on said premises, said rock, stone, and other substances, wantonly caused said rock, stone, or other substances to be cast upon plaintiff's dwelling house outhouse, stable and lot, garden and yard, so located on said premises, and as a proximate consequence thereof greatly frightening and endangering plaintiff's life as well as plaintiff's family, greatly damaging his live stock, yard, house, premises, and poultry, all to plaintiff's damage," etc. (The portion inserted by amendment is underscored.)

London & Fitts, of Birmingham, for appellant.

Frank S. White & Sons, of Birmingham, for appellee.

SOMERVILLE J.

The law of liability for injury resulting from blasting on one's own premises is well settled.

1. Where the plaintiff is injured while lawfully on the defendant's premises, liability depends upon some proximate negligence on the part of the defendant. Sloss-Sheffield, etc., Co. v. Salser, 158 Ala. 511, 48 So. 374; Birmingham, O. & M. Co. v. Grover, 159 Ala. 276, 48 So. 682.

2. For the ordinary discomforts and injurious effects attendant upon the defendant's lawful operations on his own premises, not constituting a legal nuisance, there is no liability to an adjoining or neighboring proprietor except for some proximate negligence in the mode or circumstances of such operations. Williams v. Gibson, 84 Ala. 228, 233, 4 So. 350, 5 Am.St.Rep. 368.

3. Where the defendant throws rock or other débris upon the premises of an adjoining or neighboring proprietor, this is a direct invasion and a trespass for which the defendant is absolutely liable, regardless of any considerations of prudence or negligence in the mode or circumstances of the blasting. Bessemer, etc., Co. v. Doak, 152 Ala. 166, 44 So. 627, 12 L.R.A.(N.S.) 389; Sloss-Sheffield, etc., Co. v. Salser, 158 Ala. 511, 48 So. 374; Birmingham O. & M. Co. v. Grover, 159 Ala. 276, 48 So. 682; 38 Cyc. 997; 1 Thomp.Neg. (2d Ed.) § 764.

4. This general rule of liability is qualified by the principle that where the defendant has by law or contract acquired an easement as against the plaintiff's premises, which expressly or impliedly authorizes the operation of blasting, either directly or as a reasonably necessary incident to some other lawful purpose, liability arises only as the result of some proximate negligence on the part of the defendant. Wilkins v. M.C. Slate Co., 96 Me. 385, 52 A. 755; Blackwell v. L. & D.R.R. Co., 111 N.C. 151, 16 S.E. 12, 17 L.R.A. 729, 32 Am.St.Rep. 786; 27 Cyc. 784, b; 1 Thomp.Neg. § 766. See, also, Williams v. Gibson, 84 Ala. 228, 232, 4 So. 350, Hooper v. Dora Coal Mining Co., 95 Ala. 235, 10...