Fagan v. Silver

• Decision Date: 22 March 1920
• Docket Number: 4113.
• Citation: 188 P. 900,57 Mont. 427
• Parties: FAGAN v. SILVER.
• Court: Montana Supreme Court

188 P. 900

57 Mont. 427

FAGAN v. SILVER.

No. 4113.

Supreme Court of Montana

March 22, 1920

Appeal from District Court, Silver Bow County; George B. Winston Judge.

Action by William F. Fagan against Joseph Silver and others. From a judgment for plaintiff, and from order denying new trial, the named defendant appeals. Affirmed.

Francis A. Silver, of Butte, for appellant.

Shelton & Brown, of Butte, for respondent.

MATTHEWS J.

This action was commenced against Silver and others to enjoin the operation of a stone quarry and rock crusher in a residential portion of the city of Butte. The cause was tried to the court without a jury, and resulted in judgment for respondent and the issuance of a permanent injunction against Silver and one William Mackey; motion was made for a new trial and denied, and appeal taken by Silver alone from the judgment and from the order denying the motion for a new trial.

While there are a number of specifications of error, the whole question presented thereby is as to whether the evidence was sufficient to warrant the court's findings and injunction order as against this appellant. It is not contended that the evidence was not sufficient as far as Mackey was concerned but it is urged that, as the evidence establishes the existence of the relation of landlord and tenant between appellant and Mackey, or that Mackey was an independent contractor, appellant was improperly joined in the injunction order.

The undisputed testimony is that appellant was the sole owner of the lots on which the quarry was situated, and of the crusher, elevator, bins, and other machinery used, and that he placed the plant in position and condition to be operated and thereupon turned it over to Mackey under an agreement whereby Mackey was to conduct all operations and deliver the crushed rock in the bins, for the use and benefit of appellant, at a stipulated price per yard. Appellant personally removed the crushed rock from the bins, and was therefore frequently in the vicinity of the plant while in operation, and had operated it himself some two or three years before, in approximately the same position and with like results. There is no evidence in the record as to any agreement, or as to the manner in which Mackey should conduct his operations, or as to what steps, if any, he was to take for the protection of adjoining property; however, the testimony on behalf of Silver and Mackey, jointly, tends to show that all precautions possible in the then condition of the plant were taken.

Respondent's testimony shows that, in spite of such precautions, rocks did escape and were thrown against his house, the concussion from blasting was so violent as to shake the house, and that dust from the crusher and elevator entered in such quantities as to render it unfit for habitation. Such evidence clearly established the maintenance of a nuisance. Longtin v. Persell, 30 Mont. 306, 76 P. 699, 65 L. R. A. 655, 104 Am. St. Rep. 723, 2 Ann. Cas. 198.

If we consider the facts as applying to the relation of landlord and tenant, appellant cannot escape liability, for the following rules would apply:

"One who erects a nuisance on his premises cannot escape liability by leasing the same, and his liability extends to the continuance of the nuisance after the lease goes into effect." 29 Cyc. 1202; Anderson v. Dickie, 26 How. Prac. (N. Y.) 105; Robinson v. Smith, 7 N.Y. Supp. 38 ^[1]; McCarrier v. Hollister. 15 S.D. 366, 89 N.W. 862, 91 Am. St. Rep. 695.

"Where there has been a nuisance or continued existence upon

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