143 Minn. 374 | Minn. | 1919
Alleging that defendant was operating a quarry in such a manner as
In substance these were the facts as found by the trial court:
In 1904 defendant acquired the right to quarry and crush limestone underlying 40 acres of land in Lowry’s East Side Addition to Minneapolis. Johnson street was its west boundary. The tract had been platted into lots and blocks, but was then wholly unoccupied. Defendant began quarrying operations thereon in 1904, which were continued until the summer of 1916. Later it acquired nine acres adjoining the 40 on the north. This is referred to as the “Kletzin” tract.
In quarrying, the defendant proceeds as follows: The earth and a stratum of shale are removed or stripped from the layers of limestone in which holes are drilled with steam drills and the stone is then blasted with dynamite. Fragments too large to handle conveniently are broken up by light charges of dynamite, and the stone is then loaded by a steam shovel into small cars and conveyed to a crusher on Johnson street. There the stone is crushed and separated into various sizes and sold for commercial uses. Eailway trackage connects, the property with the railways in Minneapolis.
When these operations were commenced there were few dwellings in the neighborhood and no street-car lines in the region. Now the region north and west of the quarry is fairly well settled, 32 of the plaintiffs residing within distances varying from 200 to 1,800 feet. They acquired their property for homes. A street-car line on Johnson street runs out beyond the quarry. In the region south and east of the quarry there are hardly any dwellings. It is devoted in the main to industrial uses and traversed by railroad tracks. West of defendant’s quarry and within 300 feet of Johnson street there is another quarry operated by another company substantially as defendant’s is operated. Defendant’s land is mainly valuable for the underlying limestone.
In the three years immediately following 1904, several actions were brought against defendant by property owners in the vicinity of the quarry, who claimed to be damaged by defendant’s operations. These actions were settled in October, 1907, by the payment of damages. Embodied in each settlement was a release of future damages which might
In the spring of 1915, defendant began to quarry on the Kletzin tract. Objections were made by a number of the residents on Johnson street, and the operations there were discontinued and resumed in Lowry’s East. Side Addition.
In the spring of 1916, a written request addressed to defendant was circulated among the residents in the neighborhood of the quarry, and was signed by or in behalf of 14 of the present plaintiffs. Defendant was thereby requested “to quarry the stone from the foregoing property (the Kletzin tract), using the utmost care in blasting, and refill same as soon as possible.” On receiving this request in 1916, defendant again began and has since continued to quarry stone on the Kletzin tract, thus bringing its operations farther north and nearer to the dwellings of many of the plaintiffs.
In 1914, defendant began to grind the screenings from its quarry for use as a filler for asphalt paving. In 1915 and 1916, it installed and has since operated a pulverizing plant known as a “dust mill” to grind part of the product of its quarry to such fineness that it may be sprinkled on fields having an acid soil to neutralize the acids.
By the spring of 1916, defendant had invested in its buildings and equipment about $100,000. In November, 1917, its crusher was destroyed by fire. In January, 1918, it began to rebuild it and had half completed it at the time of the commencement of this action, and had expended for that purpose and for machinery over $44,000. In order to rebuild, it was necessary that defendant should obtain a permit from the building inspector of Minneapolis. Plaintiffs and others, on learning that defendant intended to rebuild, petitioned the city council to deny a permit, but the council refused to interfere and the permit was issued by the inspector.
The decision of the trial court turned upon the twelfth finding of fact, which in substance is as follows: Defendant’s operations caused some discomfort and annoyance to the plaintiffs residing nearest to the quarry from the noises and vibrations created by the drills and steam shovels, by blasting, and from some, increase of dust emanating from the dust mill. The consequences of the noise and dust are greatly ex
Other authorities adopt the ancient doctrine, that the rights! of habitation are superior to the rights of trade, and, whenever they conflict, the rights of trade must yield to the primary or natural right. They hold that if a lawful business is conducted in such a manner as to offend or interfere materially with ordinary physical comfort, measured, not by the standards of persons of delicate sensibility and fastidious habits, but by the standards of ordinary people, a permanent injunction should be granted. The cases so holding are also collected in the note to Bristol v. Palmer, supra, page 888, and it is said that this doctrine is supported by the greater weight of authority. We are of the opinion that the latter is the better doctrine, and that ordinarily it should be applied in determining whether an injunction should be granted or denied in cases such as this.
We are inclined to think there is a distinction, but, as was pointed out in Czarnecki v. Bolen-Darnell Coal Co. 91 Ark. 58, 120 S. W. 376, the distinction is sound only insofar as it relates to things which are reasonably essential to the proper operation of a mine or quarry. In a well considered case, Pwllbach Colliery Co. v. Woodman, Ann. Cas.
We are not disposed to adopt any rule which will hamper the development of the natural resources of the state, but in their development rea-, sonable regard must be had for the health and comfort of people living .in the neighborhood.
In Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. ed. 205, Mr. Justice Harlan remarked that all property in this country is held under the implied obligation that the owner’s use of it shall not be injurious to the community, and in State v. New England F. & C. Co. 126 Minn. 78, 147 N. W. 951, 52 L.R.A.(N.S.) 932, Ann. Cas. 1915D. 549, this court quoting the remark said “that no vested * * * right exists to use * * * property for purposes injurious to either public health or morals.”
The case is one in which relief should be given under the rule that an injunction should never go beyond the requirements of the particular case, nor should it close an industrial plant, if it is possible to avoid doing so, while giving plaintiff the relief to which he is entitled. Little or no evidence was introduced to show whether the noise of blasting can or cannot be smothered, or whether its jarring effects may or may not be reduced by using smaller charges of dynamite without seriously interfering with defendant’s quarrying operations. The court was not advised as to the possibility of controlling the escape of lime dust from defendant’s crusher and dust mill. We should suppose that it is feasible to confine the dust very largely to defendant’s own premises and so remove, or substantially mitigate, the annoyance to plaintiffs from that source. Further testimony should be taken on these features of the case only, in order that the trial court may be in a position to act intelligently in affording plaintiffs relief, without destroying defendant’s business.
The order denying a new trial is reversed and the case remanded for further proceedings in accordance herewith.
[1915 A. C. 634.]