Rafter v. Tagliabue

29 Abb. N. Cas. 1

Opinion

McAdam, J.

Ordinarily an owner of land cannot be enjoined from blasting rock off his own premises for the purposes of improvement, provided he exercises every reasonable care that no injury be done to the adjoining property, and that duty must be observed here. The injunction will be modified by permitting the blasting to go on, but enjoining the doing of the work without the safeguards which prudent men, while doing like work, adopt to prevent injury. Lawful acts must not be done in an unlawful manner (2 N. Y. 159 ; 4 Den. at p. 316 ; 4 Robt. 449; 80 N. Y. 579; Wood on Nuisances, § 142; 1 Thompson on Neg. 113), or they may be the subject of action or suit in equity, according to the nature of the grievance. The question as to the rights and duties of. the parties concerning the party wall does not arise upon this motion in such manner as to require an adjudication thereon (See 80 N. Y. 614).

Whether there is a liability against the owner or the contractor above may depend on questions which will be more appropriately determined at the trial (See Brennan v. Schreiner, 28 Abb. N. C. 481), or may be considered on motion to punish for contempt.

In the modified form the injunction will be continued. No costs.