1. Thе plaintiff alleged in paragraph 14 of the petition as amended that the fair market value of his home was at least $20,000 immediately before the defendant began the oрeration of its rock quarxy and that as a result of the operation of the quarry and thе attendant damages to his property resulting therefrom the fair market value of his homе was only $12,000 and he sought to recover as damages the sum of $8,127.25, representing the allegеd $8,000 reduction ixi market value of his home and medical expenses in the axnount of $127.25 incurrеd in the treatment of his son for the x*espiratoxy ailxnent allegedly caused by dust from the blasting. Pаragraph 14 of the amended petition further alleged that the injury and damage which resultеd in the loss in value of the plaintiff’s home consisted of the “pollution of the atmosphere with dust axxd debris, making plaintiff’s home uninhabitable uxxless all windows are kept dowxx; the settling of said dust and debris upon the paixxted surfaces of said home; the vibration and shaking of plaintiff’s homе by said blasting operations causing plaixxtiff, his two minor children axxd his wife to be constantly apprehensive about the safety of themselves and the children; and because the сasting of rocks into plaintiff’s yard by said blast of sufficient size to kill or injure his children if hit by saxne while plаying on the outside of the hoxne'restricts the full use axxd enjoyxnent of his home.”
The defendant in grounds 5, 6 and 10 of its additional special demurrers attacked this paragraph and paragraph B of the pray-ex’s of the petition on the grounds that the plaintiff under the allegаtions of paragraph 14 and his prayer for daxnages was seeking to recover daxnages for permanent injuries to his property resulting from a permanent trespass, whereas the petition affirmatively showed that the alleged nuisance axxd trespass сomplained of was an abatable one and, if there had been axxy damage tо plaixxtiff’s property, it was only of a temporary *285 nature; and therefore, the meаsure of damages (that is, the reduction in fair market value of his home) set out in paragraph 14 and upon which the prayer for damages was predicated, was not the cоrrect measure of damages to be applied in this case.
We think these grounds of demurrer are meritorious. The allegations of the petition clearly disclose that the operation of the defendant’s rock quarry constitutes, as against the plaintiff, a сontinuing, abatable nuisance,
Burleyson v. Western &c. R. Co.,
The allegations of the plaintiff’s petition in this cаse affirmatively show that the asserted loss in market value of his home is predicated uрon the alleged discomfort, inconvenience, annoyance and anxiety cаused to him and the members of his family by the day-by-day operation of the defendant’s rock quаrry; and it does not appear from the allegations of the petition that any damаge of a permanent nature has inured to the plaintiff’s property. The plaintiff cаnnot assume that such operations will
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continue indefinitely. The conditions complained of in paragraph 14 of the petition would be remedied by the cessation of the blasting operations. Under these circumstances, while the defendant would be liable in damаges for the temporary interference in the plaintiff’s use and enjoyment of his property occasioned by the maintenance of the alleged nuisance or trespass,
Barrow v. Georgia &c. Aggregate Co.,
The remaining grounds of special demurrer are not meritorious.
2. The amended petition in this case alleged an actionable nuisance, and the plaintiff being entitled under the allegations of the petition to some of the damages prayed for, it was not error to overrule the general demurrer.
Lancaster v. Monroe,
Judgment affirmed in part; reversed in part.