Lademan v. Lamb Construction Co.
| Decision Date | 12 July 1927 |
| Docket Number | 19771,19948 |
| Citation | 297 S.W. 184 |
| Parties | JULIA DEAN LADEMAN; LOUIS MOLASKY; FRANK G. GORASKY and JENE GORASKY, his Wife; WAGNER GRANT BELL REALTY CO., a Corporation; WM. SCHERRER; JACOB RUPP; GEO. F. STOCK; ARTHUR ROSENBLATT; HULDA L. BACON; A. F. LERNER; E. L. WAGNER CONST. CO., a Corporation; MAX GOLDMAN; A. ULLMAN and MRS. A. ULLMAN, his Wife; ELLA GILL; JOHN C. JANNOPOULO and HENRY WAGNER; CLEMDEL REALTY & INV. CO., a Corporation; JOHN C. JANNOPOULO; LURSO INV. CO., a Corporation; JOSEPH FRIEDMAN; and MAX SCHOLER, (Plaintiffs) Respondents, v. LAMB CONSTRUCTION COMPANY, a Corporation, and WEST ST. LOUIS QUARRY COMPANY, a Corporation, (Defendants) Appellants |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court. St. Louis County. Hon. G. A. Wurdeman Judge.
REVERSED AND REMANDED WITH DIRECTIONS.
Walter E. Bennick, COMMISSIONER. Daues, P. J., Becker and Nipper JJ., concur.
Walter E. Bennick, COMMISSIONER.
This is a suit in equity, brought by plaintiffs, the owners of certain property situated in University City, Missouri, to restrain and enjoin defendants from the operation of a rock quarry, located in the vicinity of the property of plaintiffs. From a decree for plaintiffs, both defendants perfected separate appeals, which have been heard together and are disposed of in this one opinion.
In the petition it was averred, in substance, that the quarry operated by defendants was a nuisance, in that defendants used high explosives in the blasting of rock; that pieces of rock were caused to fly and fall on and into plaintiffs' apartment buildings, and in their yards, thereby injuring the property of plaintiffs and endangering their lives; that by reason of the blasting the buildings were caused to shake on their foundations, the walls to crack, and the plastering to fall, in consequence whereof the rental value of such property was greatly impaired; that the noise of the blasting and of the machinery used in connection with the operation of the quarry was continuous, and annoying to plaintiffs and their tenants, rendering the enjoyment of their lives and property uncomfortable; and that clouds of dust and smoke were caused to settle on the buildings.
For the purposes of this opinion, the answer of defendant Lamb Construction Company may be treated as a general denial.
The answer of defendant West St. Louis Quarry Company alleged that, if the operation of the quarry constituted a nuisance, it was a public nuisance, which could not be abated at the instance of plaintiffs; that no nuisance was in fact being committed; that the latest and best methods were employed by this defendant; that plaintiffs had placed the improvements upon their lands with knowledge of the existence and operation of the quarry, and that, having purchased property adjacent to the quarry, and having moved into apartment buildings erected on such land, with knowledge of the existence and operation of the quarry, plaintiffs were estoppel to complain.
To the separate answers of defendants, plaintiffs filed replies in conventional form.
As we read the evidence in the case, we observe that the court very properly found that defendant Lamb Construction Company, for a period of about twenty years prior to November 15, 1924, had operated the quarry in question within a radius of approximately five hundred feet of the property of plaintiffs, using high explosives in the blasting of rock; that pieces of rock so blasted had been caused to fly and fall on and into the premises of plaintiffs, and the yards and streets surrounding and adjacent thereto; that the noise caused by the blasting of the rock with the use of high explosives was obnoxious and annoying to plaintiffs, their tenants, and others in the vicinity; that prior to November 15, 1924, plaintiffs had had reasonable cause for apprehension of injury; that considerable dust and smoke had been caused to settle on the buildings of plaintiffs; and that defendant Lamb Construction Company had conducted its work of blasting in such careless manner as to cause vibration to the surrounding buildings.
The court further found that defendant Lamb Construction Company, owing to the death of its president and principal stockholder, had abandoned and ceased to operate said quarry on November 15, 1924; that the quarry lay idle until March 23, 1925, when defendant West St. Louis Quarry Company began the operation thereof; that the latter defendant discontinued the use of steam power theretofore used, and caused to be installed electrically controlled and operated machinery and equipment, which tended to eliminate the offensive smoke of the former steam plant, and also lessened the noise incident to the use thereof; that defendant West St. Louis Quarry Company was employing smaller charges of explosives than had formerly been used by defendant Lamb Construction Company, as a result of which the danger of rocks being thrown out of the quarry upon the adjoining premises had been lessened, and the force of the vibration and noise from blasting had been diminished.
The court found that defendant West St. Louis Quarry Company had for the most part conducted its blasting operations in as careful and prudent manner as possible, and that, by the exercise of due care, the quarry could be operated in such manner that rocks would not be thrown upon the premises of plaintiffs and unusual volumes of dust emitted.
On December 29, 1925, the court decreed that a permanent injunction be issued against both defendants, prohibiting and restraining them in the operation of the quarry from the use of such quantities of high explosives therein as would cause loud and unusual reports or blasts calculated to disturb plaintiffs, or to injure their property; that they be prohibited and restrained from operating the quarry in such manner as to cause rocks or other debris to be cast or thrown upon the premises of plaintiffs, or in or upon the buildings, yards, streets, and parkways near and adjacent thereto; from discharging unusual quantities of dust in or about the premises of plaintiffs; and from doing any and all other things in connection with the operation of the quarry which would in anywise endanger the lives or damage the property of plaintiffs, or cause them to have a reasonable apprehension of injury therefrom.
Defendant Lamb Construction Company, in support of its prayer for reversal, argues that the injunction should not have gone against it, for the reasons: First, that the acts and practices complained of in plaintiff's bill had ceased and were abandoned by it prior to the institution of this suit; and, second, that nothing appeared in the evidence, by way of threat or other wise, to indicate the probability of the resumption of the operation of the quarry by it.
Although the evidence is convincing, and ...
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