[3 NJSuper Page 496] In the year 1895 the defendant originated on a tract of land of approximately 206 acres the enterprise of crushing and processing stone at its Millington Quarry, in Bernards Township, Somerset County. The operations continued regularly until 1936 when primary blasting was discontinued, and in 1942 the activities at the site were further diminished. During this latter period of reduced operations at the quarry, the plaintiffs acquired their residential properties. The estate of the plaintiff Lou Menges Organization,
Inc., lies on the easterly side of the defendant's lands, intercepted in part by the Delaware, Lackawanna and Western Railroad Company's right of way over which the Passaic and Delaware branch of the railroad is maintained. The Schulte messuage is situate on the opposite side of South Maple Avenue, a public street that borders partly on the easterly side of the defendant's acreage.
The defendant has recently acknowledged its intention to obtain and install new equipment and promptly to renew operations at the quarry in accordance with modern methods. The plaintiffs, apprehensive of prospective consequential injury, resolved to institute and indeed to prosecute this action for injunctive relief prior to the actual inauguration of the contemplated operations of the defendant. They take cognizance of Shakespeare's remark "Better three hours too soon, than one minute too late."
I take the succinct statement of the basic issue from the pre-trial order. It is: "Whether contemplated operations of the quarry by the defendant, including the blasting and crushing of stone, will inevitably constitute a nuisance to the injury of the plaintiffs."
A more specific declaration of the anticipated annoyances which alarm the plaintiffs is contained as follows in paragraph 7 of their complaint.
"7. Plaintiffs and their families, guests and servants will, if defendant commences quarry operations, be subjected to excessive noises, vibrations, dust and noxious odors; be deprived of peace, quiet and enjoyment; suffer discomfort and impairment of health; be exposed to the hazards of falling stone and rock; be denied the full use of their lands and the adjoining public roads during blasting operations; their properties will be liable to physical injury by jarring and concussion from explosions and by falling stone and rock; and the properties of the plaintiffs, Lou Menges Organization, Inc. and Milton R. Schulte and Florence B. Schulte, will be greatly depreciated in value."
Initially it must be conceded that injunctive relief may be sought to restrain an undertaking which it is reasonably apprehended will create and result in a nuisance. In such cases the burden of proof is normally a weighty one unless the expectant objectionable act will of itself and in all
circumstances be a nuisance per se. The proof, the degree of which I shall presently mention, must disclose that the apprehension is well grounded, that the danger is real and immediate, and that the injury will be material. Newark Aqueduct Board v. Passaic , 45 N.J. Eq. 393, 402, 18 A. 106; Hemsley v. Bew , 53 N.J. Eq. 241, 31 A. 210; Vaszil v. Molnar , 133 N.J. Eq. 577, 33 A.2d 743.
Then, next, it is to be admitted that the conduct of a stone quarry is not per se an unlawful enterprise. Its offensiveness to others depends upon the characteristics of its operations. Here we have a case in which eventualities are substituted for actualities and in which it is alleged that injurious eventualities sufficient in character to constitute a nuisance are unavoidable and indubious.
To establish a cause of action of such a nature it is at once rational to realize that the probative quality of the evidence must rise above the altitudes of speculative conjecture and uncertainty.
In the more usual class of these cases where the evidence is revelational of actual occurrences, the essential elements of the alleged nuisance must be sustained by proof that is clear, convincing, and free from reasonable doubt. "It must be clear that the nuisance will exist in the one instance just as it must be clear that it does exist in the other." Sayre v. City of Newark , 58 N.J. Eq. 136, 42 A. 1068. To doubt the justification is to deny the injunctive relief. Hence the degree of proof becomes a particularly prominent factor in the judicial consideration of an alleged nuisance in expectancy. Especially so, here, where it is charged that the ...