Rafter v. Tagliabue
The Superior Court of the City of New York and Buffalo
Action by Edward Rafter for damages and injunction against Sarah A. Tagliabue, Amelia E. Arndt, Louise F. Kern, and Rudolph V. Kern, owners of the land on which certain blasting was progressing, and Charles E. Dornbusch, the contractor conducting the work.
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Action by Edward Rafter for damages and injunction against Sarah A. Tagliabue, Amelia E. Arndt, Louise F. Kern, and Rudolph V. Kern, owners of the land on which certain blasting was progressing, and Charles E. Dornbusch, the contractor conducting the work. Defendants were ordered to show cause, and enjoined from excavating or removing soil from the land adjoining plaintiff’s land, or from blasting thereon in any manner that would result in damaging the foundations of buildings on plaintiff’s land. On motion for a continuance of the injunction it was allowed, with modifications.
1Opinion of the CourtMcADAM, 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, (Hay v. Cohoes Co., 2 N. Y. 159; Fish v. Dodge, 4 Denio, 316; McKeon v. See, 4 Rob. [N. Y.] 449; Heeg…
2Cases cited4 opinions
- Hay v. . the Cohoes CompanyNew York Court of Appeals · 1849
- Heeg v. . LichtNew York Court of Appeals · 1880
- Schile v. . BrokhahusNew York Court of Appeals · 1880
- Brennan v. SchreinerThe Superior Court of the City of New York and Buffalo · 1892