Foster v. Preston Mill Co. Sup. Ct. Of Wash.,

44 Wash.2d 440, 268 P.2d 645 (1954)

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Nature of the Case

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Facts

D was constructing a road to gain access to certain timber which it desired to cut. The road was located about two and one-quarter miles southwest of the mink ranch, and about twenty-five hundred feet above the ranch, along the side of what is known as Rattlesnake Ledge. It was necessary to use explosives to build the road. The customary types of explosives were used, and the customary methods of blasting were followed. The most powder used in one shooting was one hundred pounds, and usually, the charge was limited to fifty pounds. The procedure used was to set off blasts twice a day -- at noon and at the end of the workday. The period of each year during which mink kittens are born, known n as the whelping season, begins about May 1st. The kittens are born and are left with their mothers until they are six weeks old. During this period, the mothers are very excitable. If disturbed by noises, smoke, or dogs and cats, they run back and forth in their cages and frequently destroy their young. Mink can become accustomed to disturbances if continued over a period of time. P's mink were not bothered by the heavy traffic on U. S. Highway No. 10, and by the noise and vibration caused by passing trains. Blasting operations conducted by D frightened a mother mink owned P. P asked D to stop and D ignored the pleas. D kept on blasting. This caused the mink to kill their kittens. P sued D on the theory of absolute liability, and, in the alternative, a cause of action on the theory of nuisance. After a trial to the court without a jury, judgment was rendered for P in the sum of $1,953.68. D appealed. There is strict liability in Washington for blasting whether the damage was caused by trespassory or nontrespassory invasions.