Rogers v. Gibson

• Decision Date: 19 January 1937
• Citation: 267 Ky. 32
• Parties: Rogers v. Gibson et al.
• Court: United States State Supreme Court — District of Kentucky

267 Ky. 32

Rogers v. Gibson et al.

Court of Appeals of Kentucky. Chancery Branch, First Division.

Decided January 19, 1937.

1. Nuisance. — Though there is remedy at law for actual trespass of throwing stones in blasting operation, equity has jurisdiction to grant injunction against repetition of such acts.

2. Nuisance. — Parties living in area of city block held entitled to join as parties plaintiff in suit for injunction against company operating quarry to enjoin discharge of such blasts of dynamite as interfered with parties' use of their buildings (Civil Code of Practice, sec. 22).

3. Nuisance. — In suit to enjoin company operating quarry from discharging such blast of dynamite as interfered with use by plaintiffs of their buildings, petition held not demurrable for failing to allege that acts complained of were due to negligence, since nuisance may exist either with or without negligence.

4. Nuisance. — Negligence is not involved generally in nuisance action or proceedings and is not essential to cause of action.

5. Nuisance. — In suit to enjoin company operating quarry from discharging such blasts of dynamite as interfered with plaintiffs' use of their buildings, petitions alleging acts constituting nuisance held not demurrable for failure to name such acts as being a nuisance.

6. Nuisance. — Fact there is no remedy at law for damages resulting from blasting operation in absence of physical trespass is additional reason why chancellor in suit in equity for injunction should restrain such operation.

7. Nuisance. — In suit to enjoin company operating quarry from discharging such blasts of dynamite as to interfere with plaintiffs' use of their buildings, plaintiffs held entitled to permanent injunction.

Appeal from Jefferson Circuit Court.

DODD & DODD for appellant.

THOMAS W. BEALE for appellees.

OPINION OF THE COURT BY STANLEY, COMMISSIONER.

Affirming.

In September, 1935, the appellant, Ralph Rogers, doing business as the Louisville Crushed Stone Company, opened and began operating a quarry just outside the city limits of Louisville. The neighborhood is not thickly settled, but seems to be laid off in streets and may be regarded as urban territory. The appellees are property owners and residents close to the quarry. All are within the area of a city block. They brought this suit against appellant seeking a permanent injunction against conducting the quarry and blasting operations in a manner that would cause the shaking of their buildings, the casting of stones upon their premises, or impairing the value thereof. The court adjudged "that Ralph Rogers, trading and doing business as the Louisville Crushed Stone Company, and his agents, servants and employees, and each of them, are hereby perpetually enjoined from discharging or permitting to be discharged such blasts of dynamite or other explosives in the operation of the quarry owned by the defendant, Ralph Rogers, and referred to as the Louisville Crushed Stone Company, and operated by said defendant, as would jar the dwelling houses or other buildings of any of the plaintiffs herein to such an extent as would interfere with the comfortable and reasonable enjoyment of their homes or houses; or to cause said houses, or any of them, to vibrate or shake; or to cause the plastering or other coverings of the walls or ceilings in any of said houses to crack or fall or be in any other way damaged; or to cause the foundations of any of said houses to crack or be damaged; or to cause the concrete sidewalks to any of these said houses to crack or be in any way damaged; or to cause other injury to any of such houses."

The overruling of the special and general demurrers to the petition is pressed as error. The petition describes that the blasting had been, and would be, done by exploding "large and extensive quantities of dynamite and/or other high explosives," and alleges, in substance, that the operations had caused the plaintiffs' houses to be shaken "as by an earthquake"; to crack the walls and plasterings of some of them; to break the foundations of other houses; to throw large stones upon the premises of the plaintiff Snyder, making the same dangerous for occupancy, which it is charged was "by wrongful and negligent acts". and to shake the ground of all the plaintiffs, thereby damaging and endangering the same and making their property unsafe for occupancy as well as impairing its value. It is further alleged that the plaintiffs had repeatedly protested those acts of the defendant, his agents and employees, without avail.

As to the special demurrer, it is submitted that since there is no allegation of an actual invasion of the property of any of the plaintiffs except Snyder, they were improperly joined with him; that he has an adequate remedy at law for trespass, and a court of equity has no jurisdiction of his cause. The throwing of stones in blasting operations is but one character or element of invasion of property rights. Although there is an actual trespass in that way, it has long been held that equity does have jurisdiction and that an injunction against repetition will be granted. Section 22, Civil Code of Practice, provides that all persons having an interest in the subject of an action and in obtaining the relief demanded may be joined as plaintiffs, unless otherwise provided. The right of joinder in a similar case was sustained in Barrett v. Vreeland, 168 Ky. 471, 182 S.W. 605. To the same effect is Louisville & N.R.R. Co. v. Franklin, 170 Ky. 645, 168 S.W. 643.

As to the general demurrer, it is pointed out that there is no allegation of negligence in any other particular than in throwing stones on Snyder's property and no specific reference to the facts charged as constituting a nuisance. It was not necessary that the acts complained of should have been due to...