Dixon v. New York Trap Rock Corp.

The plaintiffs are husband and wife and, as tenants by the entirety, are the owners of a dwelling-house property in the county of Dutchess. Their complaint alleges that this house was injured and the health of the female plaintiff impaired through vibration of the earth caused by blasts that from time to time were exploded by the defendant at its neighboring rock quarry.

The blasting operations admittedly were of a customary sort. There was evidence, however, that actual injury thereby done to the house of the plaintiffs was substantial and continuous and greatly diminished the value of the property as well as the enjoyment of it. This proof was adopted by findings that stand affirmed. In the judgment of the courts below, the blasting was so excessive in result as to constitute an "unreasonable" interference with the land of the plaintiffs. The tort thus signified is nuisance — a wrong in which failure to take proper care is not a necessary element of liability. (See Campbell etal. v. Seaman, 63 N.Y. 568; McCarty v. Natural Carbonic GasCo., 189 N.Y. 40; Hogle v. Franklin Manufacturing Co.,199 N.Y. 388; McFarlane v. City of Niagara Falls, 247 N.Y. 340,343; Cf. Penal Law, § 1530.) For the claimed damages to their property, the plaintiffs have a recovery of $7,500.

As appellant here, the defendant says the findings are contradictory of physical law and assert the impossible. Nothing useful would be gained by setting forth our analysis of the detailed expert testimony on which this contention depends, for at the end we would only be able to say there was a question of fact as to the conclusiveness of the scientific instruments and formulas used by the witnesses. We dispose of this branch of the case, then, by merely stating our conclusion that argument on this point was ended by the findings made and affirmed. (SeeWalters v. Syracuse R.T. Ry. Co., 178 N.Y. 50.)

Stress is laid by the defendant upon our decision in Booth v.R., W. O.T.R.R. Co. (140 N.Y. 267). We think this emphasis is misplaced. In the Booth case, the blasting was a more or less temporary act which was appropriate for the adaptation of the defendant's land to a lawful business and that act was for that reason deemed to be on the side of the public welfare. (Cf. Bohlen, Studies in the Law of Torts, 414, 415.) Such an activity — so we said — ought not to be a ground of liability in the absence of negligence in the method of doing it, unless some substance is thereby cast upon the person or property of another. (See the cases cited in Derrick v. Kelly, 136 App. Div. 433.) In the present case, the blasting (as we must suppose) was regularly carried on after notice of harm that already had ensued from it. In the present case, moreover, there was no purpose to promote any improvement of the defendant's land. These distinctions bring to the fore a fundamental principle which inSullivan v. Dunham (161 N.Y. 290, 300) was restated by VANN, J., in these words: "The safety of property generally is superior in right to a particular use of a single piece of property by its owner." The Booth case declared a precise exception to that proposition. The present case is not within that exception.

A cross appeal by the plaintiffs remains to be considered. The health of the female plaintiff had been good prior to the time when the defendant's blasting operations first injured her home in 1935. In that connection, the trial Referee made the following findings: "That from said year of 1935 down to the commencement of this action her health has been considerably impaired. That she is suffering from a neurotic condition known as an anxiety state * * * and is unable to sleep or rest normally. * * * That she lives in a constant state of dread and apprehension of the blasting conditions and the consequent damage and ruin of her home. That such blasting and her apprehension and dread thereof has caused her present nervous collapse * * * and that she has committed no act or acts contributing to her suffering * * *." The Appellate Division reversed these findings and made contrary new findings upon which the judgment was modified by striking therefrom an award to the female plaintiff of $2,000 damages. The plaintiffs now challenge that modification.

We think the above findings of the Referee are in conformity with the weight of the evidence. On that basis, his award of damages to the female plaintiff should be reinstated; and this because of the principle that discomfort and inconvenience caused by the disturbance of the property are valid grounds of recovery in an action for a nuisance. (See Rosenheimer v. Standard GasLight Co., 36 App. Div. 1, 10; 21 Amer. Eng. Encyc. of Law [2d ed.] 728; 142 A.L.R. 1307, 1312; Salmond on Torts, 9th ed. 231.)

The judgment of the Appellate Division should be reversed and that of the Referee affirmed, with costs to plaintiffs.

RIPPEY, LEWIS, CONWAY and DESMOND, JJ., concur; LEHMAN, Ch. J., and THACHER, J., concur in the result.

Judgment accordingly.