Opinion
03-09-1910
NEW YORK & NEW JERSEY TELEPHONE CO. v. SNYDER et al.
Edward A. Day, for complainant. Thomas M. Kays, for defendants George F. Snyder and Michael J. McCrudden. David F. Edwards and Theodore Rurode, for defendant Carmine Gaudiosi.
Action by the New York & New Jersey Telephone Company against George F. Snyder and others. An order was issued restraining defendants from using dynamite in constructing a public highway so as to injure the property of complainant, and defendants were fined for contempt in violating that order.
Edward A. Day, for complainant. Thomas M. Kays, for defendants George F. Snyder and Michael J. McCrudden.
David F. Edwards and Theodore Rurode, for defendant Carmine Gaudiosi.
HOWELL, V. C. Prior to July 21, 1909, the complainant had constructed and was using in its business of supplying telephonic communication a trunk line consisting of several wires between Netcong and Newton. The defendants in the early part of 1909, and on the day above named, were engaged in the construction of a public highway between these two points, and it became necessary for them to do considerable rock blasting, which was done by the use of dynamite or some other high explosive. The telephone line was placed in such a position along the highway that it was difficult for the defendants to do such blasting as was necessary without injuring the line. On the day above named the complainant filed its bill alleging, among other things, that the defendants had conducted their blasting operations in such manner as that between April 2d and July 10th the defendants, or one of them, had broken the telephone line on 54 different days, and prayed that an injunction might issue to prevent the further infraction of the complainant's right and the further destruction of its property.
On the filing of the bill an order was made requiring the defendants to show cause on July 23d why an injunction should not issue in accordance with the prayer of the bill. On the return day the defendant Gaudiosi only appeared. He filed no answering affidavits. An order was then made that the defendants Snyder, McCrudden, and Gaudiosi be enjoined from conducting and carrying on the operation of blasting stones, rocks, and stumps in and along the public highway between the borough of Netcong and the town of Newton, in the county of Sussex, known as the Newton-Netcong road, without using proper and effective methods of preventing the escape of flying pieces of rock, stones, and stumps, from using excessive charges of gunpowder, dynamite, or other explosive in making blasts, from setting off an undue number of blasts at the same time, and without using all other reasonable means and precautions to protect the telephone poles, wires, and fixtures of the complainant. A certified copy of this order was served on Gaudiosi by the sheriff of Sussex county. No service was made upon either McCrudden or Snyder, but it fully appears in the case that McCrudden had knowledge of it; a copy of the original bill showing the extent of the prayer for injunction and the order to show cause were in his possession before the return day, so that he had notice of the character of injunction that was prayed against him. He likewise knew that an order enjoining him had been made, on the return day. In a letter, written by the defendant McCrudden to complainant's counsel on July 28th, he says, among other things: "As we understand this injunction it prevents us from blasting except after taking due precaution to avoid injuring your telephone lines We are now writing letters to our superintendents and our subcontractors advising them of this injunction and ordering them to make no further blasts until all necessary precautions are taken." On the same day he wrote to his superintendents as follows: "An injunction by the Court of Chancery of the state of New Jersey was granted on the 23d day of July restraining us from blasting on the Newton-Stanhope road unless necessary precautions are taken to avoid injuring the telephone lines. If this is not done we are liable for contempt of court. You will give Instructions to the foremen under you and to any other men who handle power and dynamite to take the necessary precautions." A copy of this letter was sent to Gaudiosi, who had a subcontract from Snyder and McCrudden for doing a portion of the work. McCrudden is therefore chargeable with complete knowledge of the contents of the writ. Kempson v. Kempson, 61 N.J.Eq. 311, 48 Atl. 244.
On October 15, 1909, complainant filed a petition alleging that between July 31st and October 15th the defendants had so conducted their blasting operations as to break the telephone communication by breaking the wires on 11 or 12 occasions, and praying that the defendants might be punished for contempt of court, in violating the injunction. A large amount of testimony was taken, from which it appears satisfactorily to me that the defendants Gaudiosi and McCrudden did not take such due and proper precautions to avoid injuring the telephone lines of the complainant as by the terms of the injunction they were bound to do. Some of the blasting was done at a quarry the face of which when first opened was only about a hundred feet from the telephone line. At that point, so far as the evidence shows, practically no precautions were taken to prevent injury to the lines. At other points the blasting was conducted immediately under the telephone wires, with either practically no precaution, or such slight precaution as to possibly do more harm than good. Without going into the evidence fully, it will be sufficient for me to say that in my opinion they did not take such due and proper care in their blasting operations as they were bound to take under the injunction, and I must hold McCrudden and Gaudiosi guilty of contempt of court for failing therein.
I will advise an order subjecting the defendants McCrudden and Gaudiosi to a fine of $10 each, together with the costs of the proceeding, and that a warrant of commitment be issued against them, by virtue of which they shall be committed to the Sussex county jail until the said fine and costs shall be paid.