Thurmond v. Ash Grove White Lime Ass'n.

• Decision Date: 14 May 1907
• Citation: 102 S.W. 617,125 Mo. App. 73
• Parties: THURMOND v. ASH GROVE WHITE LIME ASS'N.
• Court: Missouri Court of Appeals

102 S.W. 617

125 Mo. A. 73

THURMOND v. ASH GROVE WHITE LIME ASS'N.

St. Louis Court of Appeals. Missouri.

May 14, 1907.

1. TRESPASS — POSSESSION — INJURY TO FREEHOLD.

Where plaintiff's son was in possession of land at the time of injury by rock and stones being thrown thereon from defendant's adjacent quarry, plaintiff could not recover for the mere wrongful entry, but could only recover for injury to the freehold.

2. EXPLOSIVES — ADJOINING LANDOWNERS — NEGLIGENCE.

Where plaintiff's house and cistern were injured by explosions occurring in defendant's quarry on adjoining land, which plaintiff had leased and sold to defendant, plaintiff could recover for such injuries only on proof that the blasting operations were negligently conducted.

3. SAME—EVIDENCE—QUESTION FOR JURY.

In an action for injuries to plaintiff's house and cistern by explosions in defendant's adjoining stone quarry, evidence of defendant's negligence in conducting its blasting operations held to require submission of such issue to the jury.

Appeal from Circuit Court, Greene County; Jas. T. Neville, Judge.

Action by J. L. Thurmond against the Ash Grove White Lime Association. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Wright Bros. & Blair, for appellant. Wear & Hayden, for respondent.

GOODE, J.

This appeal was taken from a judgment given for defendant in an action to recover for injuries to plaintiff's farm, and the house, cistern, and fencing thereon, alleged to have been caused by blasting in defendant's quarry. The petition avers that, on a day not stated in 1905, "defendant, by its agents and servants, placed in the rock in its aforesaid quarries quantities of explosives, and discharged the same, and wrongfully and recklessly and negligently by shaking the earth thereby, and by the shocks and concussions by said explosions and discharges produced, defendant shook and cracked the plastering in plaintiff's said house, and thereby rendered the same useless and unsightly to the plaintiff's great damage; and also by the same acts, and like ones, defendant shook and cracked the cement on the walls of plaintiff's said cistern, and thereby decreased the capacity of said cistern and greatly injured said cistern thereby, greatly to plaintiff's damage; and defendant by its agents and servants, by the use of explosives in said quarries, and by blasting, threw, and caused to be thrown, quantities of rock and stone upon plaintiff's said farm, thereby injuring plaintiff's said farm and breaking plaintiff's fences—all to the damage of plaintiff in the sum of $250." Plaintiff owned the farm and improvements, but had for several years lived in the town of Ash Grove, having rented the farm to his son, who was in possession and resided in the house. Prior to the incidents complained of, plaintiff had leased a part of his land to defendant for a quarry, and later had sold the leased tract for the same purpose. If the injurious blasting was not done on the land defendant had bought from plaintiff, it was done in a quarry which covered a portion of said land. This quarry was between a quarter and an eighth of a mile from the farm house, and was opened in October, 1904. Blasting in it was carried on without damaging the farm or improvements until the next spring. The particular explosions alleged to have been harmful occurred, plaintiff's son swore, on the first three days in May, while defendant was blasting for a track (a railway or tram track, we suppose) at the north end of the new quarry. Afterwards blasting was again carried on with no bad results. Witnesses swore that at the time stated "there was some unusually heavy shooting"; that plaintiff's house was jarred, and the windows caused to rattle, plastering shaken from the walls and ceilings of the rooms, and the cement cracked in the cistern. The son's wife swore that one night an explosion awakened her from sleep, and the next morning she saw plastering on the floor. Rocks were thrown on plaintiff's farm and on the fence between plaintiff's land and defendant's quarry. This was a wire fence, and the wires were bent down in several places; but no witness undertook to estimate the cost of repair, and probably it was too insignificant to be estimated. Approximate proof was made of the damages to the house and cistern. In instructing the jury, the court limited the verdict for plaintiff to one for nominal damages, and this was allowed only in the event the jury found rocks were thrown on plaintiff's premises to his injury. Damages for injury to the house and cistern were refused. A verdict was returned for defendant.

It is contended by plaintiff's counsel that the court erred in requiring the jury to find rocks were thrown on plaintiff's farm to his injury, in order to find a verdict in his favor. We understand counsel to mean that hurling rocks on the premises was a trespass, and, whether injury was done or not, plaintiff was entitled to nominal damages. Had he been in possession of the farm, likely this proposition would be sound, without regard to whether the blasting was carefully done. Hay v. Cohoes Co., 2 N. Y. 159, 51 Am. Dec. 279; Tremaine v. Cohoes Co., 2 N. Y. 163, 51 Am. Dec. 284. But plaintiff's son was in possession, and therefore plaintiff had no right to recover for a bare entry. It was not proved the falling rocks injured the farm except by bending the wires of the fences in two or three places, and, as said, there was no evidence as to the extent of the loss thus occasioned. For an injury to the freehold or inheritance, plaintiff might recover, even though his son was in possession. Parker v. Shackleford, 61 Mo. 86; Arnold v. Bennett, 92 Mo. App. 156. Hence, if substantial harm had been done to the farm by falling rocks, we might hold the instruction for nominal damages was erroneous; but, as no harm was proved, plaintiff was not entitled even to a nominal verdict on that score.

On a proper pleading, supported by relevant evidence, plaintiff was entitled to recover for damage to the house and cistern caused by concussions. The legal problem in this connection is whether or not his right to recover for this damage depended on his proving negligence in the blasting, or was made out by merely showing the freehold was injured. It has been said the law on this subject is not well settled. 12 Am. & Eng. Ency. Law (2d Ed.) 508. Two doctrines of the law approach so closely at this point that it has been found difficult to enforce one without impugning the other. One of these doctrines is that the use of his land by the owner in a lawful business, and without trespass or negligence, does not lay him liable for casual injury to another as a result of the use. Penn. Coal Co. v. Sanderson, 94 Pa. 302, 39 Am. Rep. 785; Smith v. Fenwick, 7 C. B. 515. The other doctrine is that a man must enjoy his own property in such a manner as not to injure the property of others or otherwise invade their rights. The question has been discussed in many cases involving the...