Longtin v. Persell

Citation76 P. 699,30 Mont. 306
PartiesLONGTIN v. PERSELL et al.
Decision Date05 May 1904
CourtUnited States State Supreme Court of Montana

Appeal from District Court, Lewis and Clarke County; J. M. Clements Judge.

Action by Joseph Longtin against Thomas B. Persell and another. From a judgment for plaintiff, defendants appeal. Affirmed.

This action was commenced by Joseph Longtin, plaintiff, against Thomas B. Persell and W. E. Persell, copartners doing business as the Persell Limestone Company. The plaintiff owns, is possessed of, has his residence and lives on, lot 13, block 553, original town site of Helena. The defendants own and are operating a limestone quarry on portions of blocks 554 and 556 of the original town site of Helena, and within the present corporate limits of the city of Helena. The complaint alleges that, for 12 months prior to the commencement of this action, defendants, in the conduct of their operations in said quarry, had used and exploded large quantities of powder in blasting out stone, and that, by means of such blasting, fragments of rock had been hurled with great force against plaintiff's dwelling house doing damage thereto; that pieces of rock had been thrown upon his premises; and that the explosion of such blasts of powder had caused concussions of the air to such an extent as to shake his dwelling house, and to cause rents to be made in the walls, rendering the dwelling unsafe for residence purposes, and doing damage to it to the extent of $1,000. The answer denies that defendants caused any damage whatever to plaintiff's property, or that any damage had been sustained by plaintiff. The cause was tried to a jury, which returned a verdict in favor of the plaintiff; and from the judgment entered thereon, and from the order denying them a new trial, defendants appealed.

Toole & Bach and Clayberg & Gunn, for appellants.

Nolan & Loeb, for respondent.

HOLLOWAY J. (after stating the facts).

Numerous errors are assigned, but it is conceded that they all raise but one question. Appellants contend that they are not liable for damages caused to respondent's premises by reason of the vibrations of the earth or concussions of the air resulting from the blasting done by them, where no negligence is alleged or proved, and, in support of this contention rely upon the decisions in the following cases: Benner v Dredge Co., 134 N.Y. 156, 31 N.E. 328, 17 L. R. A. 220, 30 Am. St. Rep. 649; Booth v. Railroad Co., 140 N.Y. 267, 35 N.E. 592, 24 L. R. A. 105, 37 Am. St. Rep. 552, Simon v. Henry (N. J. Sup.) 41 A. 692; and Sullivan v. Dunham, 161 N.Y. 290, 55 N.E. 923, 47 L. R. A. 715, 76 Am. St. Rep. 274.

Benner v. Dredge Company was an action by a property owner against the dredge company which had a contract with the government of the United States to remove an obstruction to navigation from East river, New York. In the performance of its work the dredge company used explosives, by reason of which plaintiff's building was injured. The court held that the defendant was not liable in the absence of a showing of negligence, but based its decision upon the ground that the general government had absolute power to make or have made the improvement mentioned, and could not be held liable for damage resulting therefrom, and that the defendant had all the authority which the government had to select the means necessary to be employed. The court said: "The defendant had the authority of the government, and kept within it, and therefore is not liable."

Booth v. Railroad Company was an action by a property owner against the railroad company to recover damages for injuries caused by the explosion of blasting powder. It appeared that it was necessary for the company to do the blasting in order to make necessary excavations for its track. In the opinion of the court, emphasis is laid upon the fact that this blasting was only a temporary expedient, necessary to reduce the property to the use for which it was intended, and the court makes a distinction between a case of that kind and one where the blasting is carried on continuously.

Simon v. Henry was an action by a property owner against certain defendants who had a contract with the municipal authorities of the town of Union, N. J., to construct a public sewer for the town. In making excavations in the street, the defendants employed blasting powder. The plaintiff's property was injured because of concussions of the air consequent upon the explosions of such powder. The decision of this case is made upon the authority of Booth v. Railroad Co., supra, and with reference to that case it is said: "In Booth v. Railroad Co. *** it was held that the temporary use of explosives in the blasting of rock, provided reasonable care be exercised, is lawful, and damage resulting from concussion thereby produced is damnum absque injuria."

Sullivan v. Dunham was an action by an administratrix to recover damages for the unlawful killing of her intestate. Certain parties were employed by defendant Dunham to remove trees growing on his land near a public highway. The employés used dynamite in their operations, and, as a result of an explosion under a tree, a portion of the stump thrown into the public highway, along which plaintiff's intestate was traveling, killed her. It was conceded that defendants were on their own land, engaged in a lawful occupation, and no negligence was charged against them, but they were held liable. On principle, this case would seem to be opposed to appellants' contention, rather than support it. However, in the body of the opinion this language is used: "When the injury is not direct, but consequential, such as is caused by concussion, which, by shaking the earth, injures property, there is no liability, in the absence of negligence;" citing Benner v. Dredge Co., above. This seems to be purely dictum. The question of damages caused by concussions of the air or vibrations of the earth was not before the court. The cause of the injury was a portion of a tree thrown by force of the explosion of dynamite against the person killed. Neither is the doctrine announced supported by the authority cited, for, as we have already seen, the case of Benner v. Dredge Co. was decided upon a wholly different ground.

We are not prepared, then, to agree with counsel for appellants that the courts of New York and New Jersey have announced the doctrine, that for injuries sustained by the property of one, by concussions of the air caused by blasting on the property of another, no damages can be recovered in the absence of negligence on the part of the party causing the injury.

The Court of Appeals of New York has held that damages resulting from explosions of powder, which cast fragments of rock into the property of another, can be recovered, even though no negligence be alleged or proved. Hay v. Cohoes Co., 2 N Y. 159, 51 Am. Dec. 279; St. Peter v. Denison, 58 N.Y. 416, 17 Am. Rep. 258. And the Supreme Court of New Jersey has held that in a case where defendant stored a large quantity of blasting powder within...

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