Stevens v. Town of Dedham
| Decision Date | 28 May 1921 |
| Citation | 238 Mass. 487,131 N.E. 171 |
| Parties | STEVENS v. TOWN OF DEDHAM et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Norfolk County.
Action by Henry A. Stevens against the Town of Dedham and another to enjoin the operation of a quarry in such manner as to damage plaintiff. Decree dismissing the bill, and plaintiff appeals. Affirmed as to the Town, and reversed as against the defendant Livingstone, and decree entered for plaintiff against such defendant.H. P. L. Partridge, of Boston, for plaintiff.
Chester M. Pratt, of Boston, for defendants.
The master states that, the demurrer of the defendant town having been sustained, ‘the cases proceeded only against the defendant Livingstone,’ who is referred to in the report as the defendant. It is settled by Moynihan v. Todd, 188 Mass. 301, 74 N. E. 367,108 Am. St. Rep. 473, that even if the defendant was superintendent of streets, he is liable for acts of personal misfeasance in the performance of his duty when operating the quarry leased by the town for the purpose of obtaining material in maintaining its highways. The plaintiff asks for injunctive relief restraining him when quarrying from throwing fragments of rock on to her premises, or causing the house to shake, and its walls to crack. The general law often has been stated. The defendant undoubtedly had the right to work the quarry to obtain material for making or mending the public ways. But in so doing he was bound to prevent fragments of rock from falling or being thrown upon the plaintiff's land, and to take every reasonable precaution that the blasts should not be so violent and successive as to shake or materially injure the house. Shipley v. Fifty Associates, 106 Mass. 194, 199,8 Am. Rep. 318;Hunter v. Farren, 127 Mass. 481, 34 Am. Rep. 423;Flynn v. Butler, 189 Mass. 377, 386, 387, 75 N. E. 730;Stewart v. Hanreddy, 212 Mass. 340, 98 N. E. 1030;Stevens v. Rockport Granite Co., 216 Mass. 486, 104 N. E. 371. See Cremidas v. Fenton, 223 Mass. 249, 251, 111 N. E. 855.
The statements of the master that the ‘operation of the quarry is a valuable asset to the town’ and the ‘blasting operations have now reached a stage which renders it unlikely that any rocks from blasting will be thrown upon the plaintiff's premises during the future operations and the only source from which she may be likely to suffer is through concussion from the larger blasts,’ or that other houses in the neighborhood have not been shaken, is neither a justification for what had been done, nor a guaranty against repetition which the plaintiff is bound to accept. It appears from the report that pieces of rock have fallen on the premises, and some of the ...
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