132 Mo. App. 157 | Mo. Ct. App. | 1908
This is an action in equity, seeking injunctive relief against the operation of a quarry
The court decreed a qualified injunction. The defendants and each of them were perpetually enjoined from so operating their quarry, or permitting the same to be so operated, as to: first, throw rocks and stones on the plaintiff’s lot; second, as to jar the buildings on plaintiff’s said lot or cause the same to shake and vibrate; or third, to destroy or impair the comfortable use and occupancy of such buildings by loud and deafening explosions and sounds produced in the quarry; and fourth, from so operating their stone crusher had in connection with the quarry or permitting the same to be so operated as to cause a fine limestone dust to fly from said machine across plaintiff’s lot and settle in his residence.
It is said by Mr. Wood in his excellent work on Nuisances (3 Ed.), sec. 140, that the blasting of rock by the use of giant powder and other explosives in the vicinity of another’s dwelling house, is a nuisance where the blasting is negligently done. There is no proof
Besides such blasting as resulted in throwing stones upon plaintiff’s premises, the court enjoined the defendants from jarring plaintiff’s buildings so as to cause them to shake and vibrate. The jarring and causing the buildings to vibrate, as in this case to the injury of another by means of the employment of explosives and the operation of heavy machinery, is frequently enjoined as a nuisance. [Wood on Nuisances (3 Ed.), secs. 622, 624, 642; McKeon v. See, 51 N. Y. 300; McKeon v. See, 4 Robertson’s Rep. (N. Y.) 449; Scott v. Firth, 10 L. T. (N. S.) 240; Robertson v. Campbell, 13 F. C. (S. C.) 61.] And likewise the defendants may be enjoined from permitting the escape of fine limestone dust which disturbs the comfortable enjoyment of the plaintiff’s premises. [Wood on Nuisances (3 Ed.), sec. 508; Hutchins v. Smith, 63 Barb. (N. Y.) 252.] Although a trade is lawful in itself, one will not be permitted to conduct it in a locality, such as a residence district in a city, where, by reason of the unusual noise incident to the business, it entails substantial injury upon others by diminution of the comfortable enjoyment of life or property. [Wood on Nuisance (3 Ed.), sec. 619; Fish v. Dodge, 4 Denio (N. Y.) 311; Wallace v. Auer, 10 Phila. 356; 21 Am. and Eng. Ency. Law (2 Ed.), 695, 96, 97.] The doctrine fundamental of preventive relief in respect of nuisance, is that one person has no right to exercise acts of ownership over his property, even in a lawful manner, so as to materially and substantially impair the rights of his neighbor; and therefore the test of a nuisance is- not alone injury and damage, but it is injury and damage resulting from the violation of the lawful rights of another. [Wood on Nuisances (3 Ed.), sec. 880; Paddock v. Somes, 102 Mo. 226, 237,14 S. W. 746.]
It is argued on the part, of defendants that plain
The decree was given in a modified form. The intention of the chancellor is obvious to restrain only the conduct of the quarry and stone-crusher in its present offensive manner. It has been well said that such decrees are to be commended when they meet the exigencies of the case, for the freedom of action on the part of one ought not to be curtailed more than the right of relief on the part of another demands. [Schaub v. Parkinson Const. Co., 108 Mo. 122; 2 Beach on Inj., sec. 1072; McMenomy v. Baud, 87 Cal. 134.]
Among other things, the decree enjoined “operating such quarry or permitting the same to be so operated, as to jar the buildings on plaintiff’s said lot, or to cause the same to shake and vibrate.” The argument advanced against this portion of the decree is that the employment of the word “vibrate” therein operates to effectually enjoin the operation of the quarry. It is ■ said that it is impossible to prosecute work at the quarry without causing the plaintiff’s house to vibrate, and that the decree should be modified by inserting the words immediately thereafter; “to his injury or damage.” The argument must be examined Avith respect to the facts in proof. The word “vibrate” is defined by the Standard Dictionary, as follows: “To give a rapid, swinging or oscillating motion to; move to and fro, especially with a quick motion, move or SAving back and forth; oscillate.” Noav it is certain that the word “Aibrate” awards to the plaintiff the measure of relief only to which he is entitled. By reference to the facts upon which the decree is given, it appears the vibrations from unusual explosions caused plastering to fall from plaintiff’s ceiling, bricks to Avork loose and fall from
The judgment will be affirmed. It is so ordered.