264 Mass. 447 | Mass. | 1928
This is a suit brought to enjoin the defendant from committing a nuisance to the private injury of the plaintiffs. The plaintiffs are householders in the near neighborhood of premises of the defendant used by it for blasting and making crushed stone. The case was referred to a master, who filed a comprehensive report covering all the issues. Since the evidence is not reported, the facts found by the master must be accepted as true. Several grounds for relief set forth in the bill drop out of sight because of adverse findings by the master. The blasting operations carried on by the defendant caused the throwing of stones upon the land of the several plaintiffs in sufficient quantities, so continuously, and of such seriousness in possible consequences, as to justify relief by injunction. Stevens v. Dedham, 238 Mass. 487. Such throwing of stones constituted a direct trespass and the continuousness shown by the master’s findings created a nuisance as to the plaintiffs.
The contention of the defendant is that a permit issued to it is a complete defence. We assume that the permit was issued in accordance with law. Lajoie v. Milliken, 242 Mass. 508, 524, 525. By its terms the defendant was authorized “to use an explosive in the blasting of rock or any other substance at its quarry.” This conferred upon the defendant
Since the defendant is not sheltered by its permit from the consequences of its throwing stones upon the lands of the respective plaintiffs, it is liable to them for its direct physical trespass, regardless of negligence. The one who maintains a private nuisance is liable to those suffering injury, without evidence of negligence on his part. Damage to the plaintiffs was a manifest consequence of throwing the stones, as shown by the master’s report. Boston Ferrule Co. v. Hills, 159 Mass. 147, 149. Fairbanks v. Kemp, 226 Mass. 75, 79. Cases like O'Keefe v. Sheehan, 235 Mass. 390, 395, Prest v. Ross, 245 Mass. 342, 346, and Strachan v. Beacon Oil Co. 251 Mass. 479, 488, where the permit authorized the precise acts done and the licensee kept strictly within the terms of the permit, afford no protection to the defendant in these circumstances.
Since the acts of the defendant with respect to which the injunction was granted were not within the terms of the permit, the statutory remedy on the bond of the defendant given under St. 1911, c. 325 does not afford to the plaintiffs exclusive relief, but they may maintain a suit in equity. Cases like Attorney General v. New York, New Haven &
Damages may be awarded in a suit in equity in addition to the granting of an injunction. Stodder v. Rosen Talking Machine Co. 241 Mass. 245, 250, 251. Cumberland Corp. v. Metropoulos, 241 Mass. 491, 504, 505.
No error of law appears in the damages awarded. Spade v. Lynn & Boston Railroad, 168 Mass. 285, 290. Malone v. Belcher, 216 Mass. 209. Stevens v. Rockport Granite Co. 216 Mass. 486, 493.
The long delay between the filing of the bill and the issuance of the injunction is no bar to the latter. The nature of the case is such as to warrant injunctive relief.
The master had discretionary power to reopen the hearings. Bon v. Graves, 216 Mass. 440, 445. The trial court was vested with authority to permit the filing of a supplementary bill. Day v. Mills, 213 Mass. 585, 587. Leavitt v. Dimond, 227 Mass. 216, 219.
Every argument of the defendant has been considered. No ground is disclosed for reversing or modifying the decree.
Decree affirmed with costs.
