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Rafter v. Tagliabue

29 Abb. N. Cas. 1 Court N. Y. Superior Court, Special Term; English

Delivered by McAdam, J.

Contents

Majority

p. 1
RAFTER v. TAGLIABUE.
N. Y. Superior Court, Special Term;
July, 1892.

Headnote

1. Injunction; injury to real property.] Where an owner of a house sought to enjoin the owner of adjoining premises from, continuing to blast rocks in such a manner as to cause injury to his house,—Held, that the injunction should permit the-blasting to go on, and only prohibit the doing of the work without the safeguards which prudent men, while doing like work, adopt to prevent injury.[1]
2. The same.] Upon granting a preliminary injunction against. the owner of premises upon which blasting is being done, and the contractor doing the work, enjoining the blasting without-prudent safeguards, the question whether the owner or contractor is liable for injuries occasioned by improper blasting: will not be considered, but will be left to be determined at the trial or upon a motion to punish for contempt.[2]
Motion to continue an injunction.
The action was brought by Edward Rafter against Sarah A. Tagliabue and others, the owners of land upon which blasting was being done, and the contractor doing the work, for an injunction and damages.
The injunction accompanying the order to show cause, enjoined defendants from blasting on or excavating or removing soil from land adjoining the land of plaintiffs
p. 2
in such a manner as would cause damage to the foundations of the houses built upon plaintiff’s land.
R. Dudensing, Jr., for the motion.
A. C. Fransioli, opposed.

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.

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