Currier v. Essex Co.

189 N.E. 835, 286 Mass. 192, 1934 Mass. LEXIS 1007
Massachusetts Supreme Judicial Court·Decided March 30, 1934·Published·Cited by 1 cases

Opinion

Pierce, J.

This is an appeal from a final decree upon a master’s report. The bill was brought by the owners of two dwelling houses, situated on Mount Vernon Street, in Lawrence, Massachusetts, to enjoin an alleged continuing trespass, an alleged private nuisance, and for the recovery [195]*195of damages. The defendant Essex Company is the owner of the premises on the opposite side of Mount Vernon Street from the plaintiffs. The defendant Lawrence Crushed Stone Company (hereinafter called the stone company) is the lessee of the land of the Essex Company opposite the land of the plaintiffs.

Upon the completion of the pleadings the case was sent to a master. The master’s report, duly filed, discloses the following facts: The Essex Company is the owner of an undeveloped tract "of land on Mount Vernon Street, opposite the premises owned by the plaintiffs. On the southerly part of the undeveloped land a rocky ridge rises to a height considerably above the levels of the northerly part, but only slightly above the levels of Mount Vernon Street. In the part of the ridge opposite the premises of the plaintiffs there is a large ledge the top of which forms the highest point of the ridge. The northerly side of the ledge presents an open face of rock, which has been subjected to quarrying operations for many years. In 1857, the Essex Company leased the ledge for quarrying purposes and, excepting certain intervals, from that date to the present time quarrying has been done by various lessees of the Essex Company. On October 1, 1926, the Essex Company leased for a term of ten years to the stone company (then called the B & J Construction Company) the ledge with rights of way thereto, giving the lessee “the exclusive right to quarry and take stone from” the said ledge. Under the lease “the lessor reserved no direction, supervision, or control over blasting at the ledge or any quarrying operations.” As a matter of fact, “While the present lease has been in operation, the Essex Company has not done and has not had any control over any of the blasting described or referred to in the plaintiffs’ bill of complaint. No complaint has been made by any plaintiff to the Essex Company about the said blasting or any injury therefrom prior to the bringing of this suit. Further, the Essex Company had no knowledge of the way in which the blasting was done or of any injuries caused thereby to the plaintiffs or their properties. From October 1, 1926, all blasting and quarrying at the ledge [196]*196have been done by the Lawrence Crushed Stone Company. The quarrying season extends from the early part of April to the last part of October in each year.” The complaints are directed to the operations at the quarry during May, July and August, 1933.

The plaintiff Katherine C. Currier has lived in the vicinity of the ledge for about fifty years. She purchased the property on Mount Vernon Street about thirty years ago, and at that time knew of the existence of the ledge, its use for quarrying purposes, and the fact that blasting “was done to some extent when the ledge was operated.” The plaintiffs Frank P. Currier and Katherine F. Currier had lived in the vicinity of the ledge when they built a bungalow on Mount Vernon Street opposite the land upon which the quarry was operated. Frank P. Currier denied knowledge of any blasting before 1930, but the master found, and his findings are to be taken as true, that he knew when the bungalow was built that blasting had been done at the ledge to some extent. The master further found that the plaintiff Katherine F. Currier had lived in the vicinity for about twelve years. She testified that she had observed the effect of the blasting ever since 1928, but the master states that he was “unable from the evidence to find that any blasting was done at the ledge from the time she began to reside in the locality [i.e., during twelve years] up to the time the bungalow was built, or that she had any knowledge of blasting at the ledge before the building of the bungalow” in 1926. The master finds that the bungalow, and the farmhouse of the plaintiff Katherine C. Currier were distant six hundred thirty, and nine hundred fifteen feet, respectively, from the face of the ledge where the blasting complained of was done. Although blasting was done before 1930, since that time “it has been done much more frequently, extensively, and violently.” The ledge referred to is about sixty feet high and is constantly receding toward Mount Vernon Street as stone is removed in the progress of quarrying. Since 1930 deep blasts have been employed to loosen and throw down stones from the face of the ledge.

[197]*197Those blasts are prepared by drilling vertical holes, sixty feet deep, from the top of the ledge to the bottom. The holes are drilled twenty-five feet apart, and about twenty feet from the face of the ledge. The holes are about five or six inches in diameter and require from one to three weeks to drill. They are charged with dynamite. As operated in the season of 1933, each hole contained from four to six hundred pounds of dynamite, and it is estimated that for every pound of dynamite exploded in deep blasting six tons of stone are loosened and thrown down. The dynamite is put in the hole and after the requisite amount is tamped the remaining part or top of the hole is filled with a tamped mixture of stone dust and water. When the hole is charged the dynamite fills a little more than the lower half, the remaining upper part being filled with the described mixture. Any number of holes when exploded is called a “shot.” The superintendent in charge exploded two thousand pounds of dynamite with each “shot” during the season of 1930, but since 1930 has not used two thousand pounds of dynamite in any “shot.” Besides the deep blasts another form is employed called “block blasting.” This form is used to break up pieces of rock too large to be carried by a steam shovel after they are thrown down at the base of the ledge. Other than the mixture of stone dust and water, above described, there is no covering or protection over either the deep blasts or the block blasts.

“When blasting is done at the ledge a warning is given to the workmen in the quarry, but no warning has been given to the plaintiffs or anyone on their premises or on Mount Vernon Street.” At various times during the blasting seasons since April, 1930, pieces of rock have been thrown upon the premises of the plaintiffs. Three stones were exhibited at the hearing before the master. “One weighed 1.984 pounds, another 1.703 pounds and a third 3.125 pounds.” In July, 1932, a piece of stone the size of a man’s hand was thrown by a blast and struck an automobile near which the son of a tenant of the bungalow was standing. During the blasting season of 1933, at various times, pieces of broken stone have been thrown by the [198]*198blasts upon the lawns at the bungalow and the property of the plaintiff Katherine C. Currier and also upon the roof of the bungalow. The master finds “that on five different occasions during the blasting season of 1933, and prior to the commencement of this suit, stones have been thrown upon the properties of the plaintiffs by the blasts.”

On the above findings the stone company concedes that the throwing of stones as found by the master occurred, and that his findings are conclusive, but contends that the throwing of stones does not enter into normal quarry operation, and is in its nature accidental; and that if the trespasses occur often enough an injunction is warranted.

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Currier v. Essex Co., 189 N.E. 835, 286 Mass. 192, 1934 Mass. LEXIS 1007 (Mass. 1934).

189 N.E. 835 (Currier v. Essex Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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