Rafter v. Tagliabue
The Superior Court of New York City
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.
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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 in such a manner as would cause damage to the foundations of the houses built upon plaintiff’s land.
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 (2 N. Y. 159 ; 4 Den. at p. 316 ; 4 Robt. 449; 80 N. Y. 579; Wood on Nuisances, § 142; 1 Thompson on…
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 New York City · 1892