Schaub v. Perkinson Bros. Construction Co.

108 Mo. App. 122 | Mo. Ct. App. | 1904

GOODE, J.

(after stating the facts). — -The weight of the evidence sustained plaintiff’s averment that dirt and fragments of rock were hurled on her premises by the blasting done in defendant’s rock quarry and that her house was shaken thereby so as to render it very uncomfortable. Serious annoyance and damage were shown to have been caused to herself and family by the defendant’s acts. The principal contention here is, that under the finding of the trial court that the mischief done was not a necessary consequence of the work in the quarry, but was due to the careless manner in which the blasting was conducted, no relief could be granted on the petition, as it did not aver negligence, nor count on it as a cause of action, but averred, instead, that the work of the quarry was a nuisance regardless of the way it was conducted. This argument takes a strained view of the petition, which neither asserted nor denied that the blasting would necessarily be a nuisance, but simply set forth the bad results that had previously attended it. It was enough fqr the plaintiff to state facts showing the defendant had created and was maintaining a nuisance. That made a cause of action regardless of whether the nuisance was due to. negligence or to the nature of the work done. What an injunction was sought against was a continuance of the work which had annoyed and damaged the plaintiff, without reference to the mode in which it was performed. If the evidence made it apparent, as the trial judge found, that the work could be performed as well without endangering the plaintiff and her family, she was entitled to have the defendant restrained from doing it so it would produce such a consequence. That is to say, if it could be done without creating a nuisance, it was her right to have it done that way; particularly as no prejudicial result to the defendant would follow. The court below found the blasting could be as successfully carried on without casting rocks and debris over plaintiff’s premises, and therefore, limited the restriction that was put on the defendant' in conducting its business, to the mere requirement that the business should no longer be conducted so as to result in annoyance and loss to the plaintiff. What the couit was intent on restraining, and did restrain, was. the continuance of an unnecessary nuisance, leaving the defendant free to operate its quarry in an efficient but harmless way, which was found to be entirely feasible. This was right. Whether the nuisance resulted from carelessness or from necessity, it was right to abate it; at least if the defendant would not be prejudiced. As to the latter proviso, his counsel say in their brief, and the testimony bears them out, “The evidence all goes to show that a quarry can be operated without throwing out any stone or causing any vibrations more injurious to a building than the passage of a street car, or in fact, any vibrations; and that were any great vibrations to occur, or if any did occur, or were any stones thrown out of the quarry, it was the result of carelessness on the part of the workmen.” The nuisance had been going on for several years at intervals. Shall a court of equity refuse to restrain the disturbance of a •family’s comfort and the imperilment of their lives by the prosecution of work in their vicinity, when it is conceded the work can be done as successfully in a harmless way? This is the clearest case imaginable for an injunction, and it is not complicated by a question of pleading. Whether the mischief complained of would result from the blasting in any event or was due to the improper mode in which the blasting was done, it constituted a nuisance which the plaintiff ought to be relieved against, unless the injury which would result to the defendant from relieving her would be so exorbitant that, in its discretion, the court ought to refuse an injunction. Courts sometimes do refuse that remedy against a nuisance for such a reason. But the concession that the nuisance in this case had been created- and maintained needlessly for several years by doing the blasting in an improper manner, when it could have been done without detriment to the plaintiff or sacrifice of efficiency, freed the court from any embarrassment. A conservative and moderate decree granting injuiictive relief, is to be commended when it meets the exigencies of the ease; for certainly freedom of action on the part of a citizen ought not to be curtailed more than is necessary for the public welfare or the protection of the rights of some other citizen. These limited injunctions are frequently issued’ by courts. 2 Beach, Injunctions, sec. 1072. A typical case in the books is one wherein an injunction was asked by an adjoining proprietor against, the operation of a brass foundry, and relief having been granted against operating it at all, it was held erroneous; as the mischief to the adjacent proprietor could have been obviated 'by conducting the operations in a careful and proper manner. It was, therefore, ruled on the appeal that the writ should be modified so as to protect the plaintiff without unduly restraining the defendant. McMenomy v. Baud, 87 Cal. 134.

It should be stated that the evidence in this record of careless and improper blasting was received on the trial without objection, and much of it was introduced by the defendant. The defendant can not complain of the court for taking this evidence into consideration and framing its decree accordingly. Sawyer v. Railway, 156 Mo. 468, 476, 57 S. W. 108.

Our opinion is that ihe judgment of the lower court was discreet and it is affirmed.

All concur.