Fagan v. Silver

MR. JUSTICE MATTHEWS delivered the opinion of the court. This action was commenced against Silver and others to enjoin the operation of a stone quarry and rock-crusher in a residential portion of the city of Butte. The cause was tried to the court without.a jury, and resulted in judgment for respondent and the issuance of a permanent injunction against Silver and one William Mackey; motion was made for a new trial and denied, and appeal taken by Silver alone from the judgment and from the order denying the motion for a new trial. While there are a number of specifications of error, the whole question presented thereby is as to whether the evidence was sufficient to warrant the court’s findings and injunction order as against this appellant. It is not contended that the evidence [430] was not sufficient as far as Mackey was concerned, but it is urged that, as the evidence establishes the existence of the relation of landlord and tenant between appellant and Mackey, or that Mackey was an independent contractor, appellant was improperly joined in the injunction order. The undisputed testimony is that appellant was the sole owner [1] of the lots on which the quarry was situated, and of the crusher, elevator, bins and other machinery used, and that he placed the plant in position and condition to be operated, and thereupon turned it over to Mackey under an agreement whereby Mackey was to conduct all operations and deliver the crashed rock in the bins, for the use and benefit of appellant, at a stipulated price per yard. Appellant personally removed the -crashed rock from the bins, and was therefore frequently in the vicinity of the plant while in operation, and had operated it himself some two or three years before, in approximately the same position and with like results. There is no evidence in the record as to any agreement, or as to the manner in which Mackey should conduct his operations, or as to what steps, if any, he was •to take for the protection of adjoining property; however, the testimony on behalf of Silver and Mackey, jointly, tends to show that all precautions possible in the then condition of the plant were taken. Bespondent’s testimony shows that, in spite of such precautions, rocks did escape and were thrown against his house, the concussion from blasting was so violent as to shake the house, and that dust from the crasher and elevator entered in such quantities as to render it unfit for habitation. Such evidence clearly established the maintenance of a nuisance. (Longtin v. Persell, 30 Mont. 306, 104 Am. St. Rep. 723, 2 Ann. Cas. 198, 65 L. R. A. 655, 76 Pac. 699.) .If we consider the facts a's applying to the relation of [2] landlord and tenant, appellant cannot escape liability, for the following rules would apply: “One who erects a nuisance on his premises cannot escape liability by leasing the same, and his liability extends to the continuance of the nuisance after the lease goes into effect.” (29 Cyc. 1202; Anderson v. Dickie, 26 [431] How. Pr. (N. Y.) 105; Robinson v. Smith, 53 Hun, 638, 7 N. Y. Supp. 38; McCarrier v. Hollister, 15 S. D. 366, 91 Am. St. Rep. 695, 89 N. W. 862.) “Where there has been a nuisance of continued existence upon •demised premises, the lessor and the lessee may both be liable for the damages resulting therefrom — the lessee in the actual occupation of the premises, if he continues the nuisance after notice of its existence and request to abate it; and the lessor, if he first created it, and then demised the premises with the nuisance upon them, and at the time of the damage resulting therefrom is receiving a benefit therefrom by way of rent or otherwise.” (Jones on Landlord & Tenant, sec. 603.) On the other hand, if we take the view that Mackey was an [3] independent contractor, it is equally true that appellant cannot escape liability. While the case of Holter Hardware Co. v. Western Mortgage Co., 51 Mont. 94, L. R. A. 1915F, 835, 149 Pac. 489, was an action for damages, the principle involved is the same, and the rule there laid down is controlling in this ease. There damages resulted from débris, which the contractor had failed to remove, being carried by a high wind on to adjacent property. The owner of the building from which the débris came, sought to evade liability on the ground that the damage was caused by the negligence of an independent contractor, and, in disposing of the matter, this court said: ‘ ‘ The contention that Groseclose was solely responsible, upon the theory that he was an independent contractor and created the condition which resulted in the accident, is without merit for two reasons: In the first place, the contract did not impose upon him the duty to remove the débris from the skylight, or to leave the building in a ■safe condition. By not imposing this duty upon him, Kleinschmidt, the manager, became responsible for the performance of it. Negligence in this behalf was chargeable to him and the corporation. In the second place, the corporation, the owner of the property, in arranging to have repairs done upon it, the installment of which would probably result in creating a condition dangerous to neighboring property owners, was under obli [432] gation to provide that reasonable care should be taken to obviate the probable consequences. As was pointed out in Railroad Co. v. Morey, 47 Ohio St. 207, 7 L. R. A. 701, 24 N. E. 269, a proprietor’s liability ‘is based upon the principle that he cannot set in operation causes dangerous to the person or property of others, without taking reasonable precautions to anticipate, obviate, and prevent these probable consequences.’ Under this, rule, an employer may not divest himself of the primary duty he owes to other members of the community by contracting with others for the performance of work, the necessary or probable result of which is injury to third persons.” Appellant contends that finding No. 5 is erroneous, because-based on evidence stricken from the record. While some such evidence was, as pointed out, stricken, the same testimony was. permitted to go in without objection on another occasion. We find no error in the record. The judgment and order are affirmed. Affirmed. Mr. Chief Justice Brantly and Associate Justices Holloway, Hurly and Cooper concur.