Hakkila v. Old Colony Broken Stone & Concrete Co.

• Decision Date: 22 September 1928
• Citation: 162 N.E. 895,264 Mass. 447
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: HAKKILA et al. v. OLD COLONY BROKEN STONE & CONCRETE CO.

264 Mass. 447

162 N.E. 895

HAKKILA et al.

v.OLD COLONY BROKEN STONE & CONCRETE CO.

Supreme Judicial Court of Massachusetts, Norfolk.

Sept. 22, 1928.

Appeal from Superior Court, Norfolk County; Stanley E. Qua, Judge.

Suit by John F. Hakkila and others against the Old Colony Broken Stone & Concrete Company to enjoin defendant from committing a nuisance to private injury of the plaintiffs. From the decree, defendant appeals. Affirmed.G. W. Abele, of Boston, for appellant.

J. A. Anderson, of Boston, for appellees.

RUGG, C. J.

[1] This is a suit brought to enjoin the defendant from committing a nuisance to the private injury of the plaintiffs. The plaintiffs are householders in the near neighborhood of premises of the defendant used by it for blasting and making crushed stone. The case was referred to a master, who filed a comprehensive report covering all the issues. Since the evidence is not reported the facts found by the master must be accepted as true. Several grounds for relief set forth in the bill drop out of sight because of adverse findings of the master. The blasting operations carried on by the defendant caused the throwing of stones upon the land of the several plaintiffs in sufficient quantities, so continuously, and of such seriousness in possible consequences, as to justify relief by injunction. Stevens v. Dedham, 238 Mass. 487, 131 N. E. 171. Such throwing of stones constituted a direct trespass and the continuousness shown by the master's findings created a nuisance as to the plaintiffs.

[2][3] The contention of the defendant is that a permit issued to it is a complete defense. We assume that the permit was issued in accordance with law. Lajoie v. Milliken, 242 Mass. 508, 524, 525, 136 N. E. 419. By its terms the defendant was authorized ‘to use an explosive in the blasting of rock or any other substance at its quarry.’ This conferred upon the defendant no right so to blast rock as to throw stones upon the land of others. Diamond v. North Attleborough, 219 Mass. 587, 591, 592, 107 N. E. 445. Whether such right could be conferred by express staute under constitutional limitations need not be considered (see Saltonstall v. New York Central Railroad, 237 Mass. 391, 398, 130 N. E. 185), because it is plain that the terms of this permit did not go so far. The throwing of stones upon land of others is not a necessary or usual incident of the use of explosives in the blasting of rock or other substances. It is a direct trespass, and when in the nature of a continued wrong is a private nuisance. The finding by the master that these acts constituted a private nuisance must be accepted as true. Coolidge v. Old Colony Trust Co., 259 Mass. 515, 517, 156 N. E. 701. There is nothing in Sawyer v. Davis, 136 Mass. 239, 49 Am. Rep. 27,Murtha v. Lovewell, 166 Mass. 391, 44 N. E. 347,55 Am. St. Rep. 410, or Levin v. Goodwin, 191 Mass. 341, 77 N. E. 718,114 Am. St. Rep. 616, which affords immunity to the defendant in the circumstances here disclosed.

[4] Since the defendant is not sheltered by its permit from the consequences of its throwing stones upon the lands of the respective plaintiffs, it is liable to them for its direct physical trespass, regardless of negligence. The one who maintains a private nuisance is liable to those suffering injury, without evidence of negligence on his part. Damage to the plaintiffs was a manifest consequence of throwing the stones, as shown by the master's report. Boston Ferrule Co. v. Hills, 159 Mass. 147, 149, 34 N. E. 85,20 L. R. A. 844;Fairbanks v. Kemp, 226 Mass. 75, 79, 115 N. E. 240. Cases like O'Keefe v. Sheehan, 235 Mass. 390, 395, 126 N. E. 822,Prest v. Ross, 245 Mass. 342, 346, 139 N. E. 792, and Strachan v. Beacon Oil Co., 251 Mass. 479, 488, 146 N. E. 787, where the permit authorized the precise acts done and the licensee kept strictly within the terms of the permit, afford no protection to the defendant in these circumstances.

[5] Since the acts of the defendant with respect to which the injunction was granted were not within the terms of the permit the statutory remedy on the bond of the defendant given under St. 1911, c. 325, does not afford to the plaintiffs exclusive relief, but they may maintain a suit in equity. Cases like Attorney General v. New York, New Haven &...