Chapter XXXIV: Section III: Dangerous Use of Land (3)

This seems to be substantially an adoption of the early authorities, and an extension of the ancient practice of holding the defendant liable, in some cases, on the partial view that regarded the misfortune of the plaintiff upon whom a damage had fallen, and required no legal reason for transferring the damage to the defendant. The ancient rule was, that a person in whose house, or on whose land, a fire accidentally originated, which spread to his neighbor’s property and destroyed it, must make good the loss. Filliter _v._ Phippard, 11 A. & E. N. S. 347, 354; Tubervil _v._ Stamp, 1 Comyns, 32; S. C. 1 Salk. 13; Com. Dig., Action upon the case for Negligence (A 6); 1 Arch. N. P. 539; Fletcher _v._ Rylands, 3 H. & C. 790, 793; Russell _v._ Fabyan, 34 N. H. 218, 225. No inquiry was made into the reason of putting upon him his neighbor’s loss as well as his own. The rule of such cases is applied, by Blackburn, to everything which a man brings on his land, which will, if it escape, naturally do damage. One result of such a doctrine is, that every one building a fire on his own hearth, for necessary purposes, with the utmost care, does so at the peril, not only of losing his own house, but of being irretrievably ruined if a spark from his chimney starts a conflagration which lays waste the neighborhood. “In conflict with the rule, as laid down in the English cases, is a class of cases in reference to damage from fire communicated from the adjoining premises. Fire, like water or steam, is likely to produce mischief if it escapes and goes beyond control; and yet it has never been held in this country that one building a fire upon his own premises can be made liable if it escapes upon his neighbor’s premises, and does him damage without proof of negligence.” Losee _v._ Buchanan, 51 N. Y. 476, 487.

Everything that a man can bring on his land is capable of escaping,—against his will, and without his fault, with or without assistance, in some form, solid, liquid, or gaseous, changed or unchanged by the transforming processes of nature or art,—and of doing damage after its escape. Moreover, if there is a legal principle that makes a man liable for the natural consequences of the escape of things which he brings on his land, the application of such a principle cannot be limited to those things; it must be applied to all his acts that disturb the original order of creation; or, at least, to all things which he undertakes to possess or control anywhere, and which were not used and enjoyed in what is called the natural or primitive condition of mankind, whatever that may have been. This is going back a long way for a standard of legal rights, and adopting an arbitrary test of responsibility that confounds all degrees of danger, pays no heed to the essential elements of actual fault, puts a clog upon natural and reasonably necessary uses of matter, and tends to embarrass and obstruct much of the work which it seems to be man’s duty carefully to do. The distinction made by Lord Cairns, Rylands _v._ Fletcher, L. R. 3 H. L. 330, between a natural and a non-natural use of land, if he meant anything more than the difference between a reasonable use and an unreasonable one, is not established in the law. Even if the arbitrary test were applied only to things which a man brings on his land, it would still recognize the peculiar rights of savage life in a wilderness, ignore the rights growing out of a civilized state of society, and make a distinction not warranted by the enlightened spirit of the common law: it would impose a penalty upon efforts, made in a reasonable, skilful, and careful manner, to rise above a condition of barbarism. It is impossible that legal principle can throw so serious an obstacle in the way of progress and improvement. Natural rights are, in general, legal rights; and the rights of civilization are, in a legal sense, as natural as any others. “Most of the rights of property, as well as of person, in the social state, are not absolute but relative,” Losee _v._ Buchanan, 51 N. Y. 485; and, if men ever were in any other than the social state, it is neither necessary nor expedient that they should now govern themselves on the theory that they ought to live in some other state. The common law does not usually establish tests of responsibility on any other basis than the propriety of their living in the social state, and the relative and qualified character of the rights incident to that state.

In Fletcher _v._ Rylands, L. R. 1 Ex. 286, 287, Mr. Justice Blackburn, commenting upon the remark of Mr. Baron Martin, “that, when damage is done to personal property, or even to the person, by collision, either upon land or at sea, there must be negligence in the party doing the damage to render him legally responsible,” says,—“This is no doubt true; and, as was pointed out by Mr. Mellish during his argument before us, this is not confined to cases of collision, for there are many cases in which proof of negligence is essential, as, for instance, where an unruly horse gets on the footpath of a public street and kills a passenger, Hammack _v._ White, 11 C. B. N. S. 588, 31 L. J. (C. P.) 129; or where a person in a dock is struck by the falling of a bale of cotton which the defendant’s servants are lowering, Scott _v._ London Docks Company, 3 H. & C. 596, 35 L. J. (Ex.) 17, 220; and many other similar cases may be found. But we think these cases distinguishable from the present. Traffic on the highways, whether by land or sea, cannot be conducted without exposing those whose persons or property are near it to some inevitable risk; and that being so, those who go on the highway, or have their property adjacent to it, may well be held to do so subject to their taking upon themselves the risk of injury from that inevitable danger; and persons who, by the license of the owner, pass near to warehouses where goods are being raised or lowered, certainly do so subject to the inevitable risk of accident. In neither case, therefore, can they recover without proof of want of care or skill occasioning the accident; and it is believed that all the cases in which inevitable accident has been held an excuse for what, _prima facie_, was a trespass, can be explained on the same principle, viz., that the circumstances were such as to show that the plaintiff had taken that risk upon himself.” This would be authority for holding, in the present case, that the plaintiff, by having his post near the street, took upon himself the risk of its being broken by an inevitable accident carrying a traveller off the street. But such a doctrine would open more questions, and more difficult ones, than it would settle. At what distance from a highway would an object be near it? What part of London is not near a street? And then, as the defendant had as good a right to be at home with his horses as to be in the highway, why might not his neighbor, by electing to live in an inhabited country, as well be held to take upon himself the risk of an inevitable accident happening by reason of the country being inhabited, as to assume a highway risk by living near a road? If neighborhood is the test, who are a man’s neighbors but the whole human race? If a person, by remaining in England, is held to take upon himself one class of the inevitable dangers of that country because he could avoid that class by migrating to a region of solitude, why should he not, for a like reason, also be held to expose himself voluntarily to other classes of the inevitable dangers of that country? And where does this reasoning end?

It is not improbable that the rules of liability for damage done by brutes or by fire, found in the early English cases, were introduced by sacerdotal influence, from what was supposed to be the Roman or the Hebrew law. 7 Am. L. Rev. 652, note; 1 Domat Civil Law (Strahan’s translation, 2d ed.), 304, 305, 306, 312, 313; Exodus xxi 28–32, 36; xxii. 5, 6, 9. It would not be singular if these rules should be spontaneously produced at a certain period in the life of any community. Where they first appeared is of little consequence in the present inquiry. They were certainly introduced in England at an immature stage of English jurisprudence, and an undeveloped state of agriculture, manufactures, and commerce, when the nation had not settled down to those modern, progressive, industrial pursuits which the spirit of the common law, adapted to all conditions of society, encourages and defends. They were introduced when the development of many of the rational rules now universally recognized as principles of the common law had not been demanded by the growth of intelligence, trade, and productive enterprise,—when the common law had not been set forth in the precedents, as a coherent and logical system on many subjects other than the tenures of real estate. At all events, whatever may be said of the origin of those rules, to extend them, as they were extended in Rylands _v._ Fletcher, seems to us contrary to the analogies and the general principles of the common law, as now established. To extend them to the present case would be contrary to American authority as well as to our understanding of legal principles.

The difficulty under which the plaintiff might labor in proving the culpability of the defendant,—which is sometimes given as a reason for imposing an absolute liability without evidence of negligence,—Rixford _v._ Smith, 52 N. H. 355, 359, or changing the burden of proof, Lisbon _v._ Lyman, 49 N. H. 553, 568, 569, 574, 575, seems not to have been given in the English cases relating to damage done by brutes or fire. And, however large or small the class of cases in which such a difficulty may be the foundation of a rule of law, since the difficulty has been so much reduced by the abolition of witness disabilities, the present case is not one of that class.

There are many cases where a man is held liable for taking, converting (C. R. Co. _v._ Foster, 51 N. H. 490) or destroying property, or doing something else, or causing it to be done, intentionally, under a claim of right, and without any actual fault. “Probably one half of the cases in which trespass _de bonis asportatis_ is maintained, arise from a mere misapprehension of legal rights.” Metcalf, J., in Stanley _v._ Gaylord, 1 Cush. 536, 551. When a defendant erroneously supposed, without any fault of either party, that he had a right to do what he did, and his act, done in the assertion of his supposed right, turns out to have been an interference with the plaintiff’s property, he is generally held to have assumed the risk of maintaining the right which he asserted, and the responsibility of the natural consequences of his voluntary act. But when there was no fault on his part, and the damage was not caused by his voluntary and intended act; or by an act of which he knew, or ought to have known, the damage would be a necessary, probable, or natural consequence; or by an act which he knew or ought to have known, to be unlawful,—we understand the general rule to be, that he is not liable. Vincent _v._ Stinehour, 7 Vt. 62; Aaron _v._ State, 31 Ga. 167; Morris _v._ Platt, 32 Conn. 75; and Judge Redfield’s note to that case in 4 Am. L. Reg. N. S. 532; Townshend on Slander, secs. 67, 88, p. 128, n. 1 (2d ed.). In Brown _v._ Kendall, 6 Cush. 292, the defendant, having interfered to part his dog and the plaintiff’s which were fighting, in raising a stick for that purpose accidentally struck the plaintiff, and injured him. It was held, that parting the dogs was a lawful and proper act which the defendant might do by the use of proper and safe means; and that if the plaintiff’s injury was caused by such an act done with due care and all proper precautions, the defendant was not liable. In the decision, there is the important suggestion that some of the apparent confusion in the authorities has arisen from discussions of the question whether a party’s remedy is in trespass or case, and from the statement that when the injury comes from a direct act, trespass lies, and when the damage is consequential, case is the proper form of action,—the remark concerning the immediate effect of an act being made with reference to damage for which it is admitted there is a remedy of some kind, and on the question of the proper remedy, not on the general question of liability. Judge Shaw, delivering the opinion of the court, said: “We think, as the result of all the authorities, the rule is correctly stated by Mr. Greenleaf, that the plaintiff must come prepared with evidence to show either that the _intention_ was unlawful, or that the defendant was _in fault_; for if the injury was unavoidable, and the conduct of the defendant was free from blame, he will not be liable. 2 Greenl. Ev., secs. 85 to 92; Wakeman _v._ Robinson, 1 Bing. 213. If, in the prosecution of a lawful act, a casualty purely accidental arises, no action can be supported for an injury arising therefrom. Davis _v._ Saunders, 2 Chit. R. 639; Com. Dig. Battery, A. (Day’s ed.) and notes; Vincent _v._ Stinehour, 7 Vt. 62;” James _v._ Campbell, 5 C. & P. 372; Alderson _v._ Waistell, 1 C. & K. 358.

Whatever may be the rule or the exception, or the reason of it, in case of insanity, Weaver _v._ Ward, Hob. 134; Com. Dig. Battery, A. note _d_, Hammond’s ed.; Dormay _v._ Borradaile, 5 M. G. & S. 380; Sedgwick on Damages, 455, 456, 2d ed.; Morse _v._ Crawford, 17 Vt. 499; Dickinson _v._ Barber, 9 Mass. 225; Krom _v._ Schoonmaker, 3 Barb. 647; Horner _v._ Marshall, 5 Munf. 466; Yeates _v._ Reed, 4 Blackf. 463, and whatever may be the full legal definitions of necessity, inevitable danger, and unavoidable accident, the occurrence complained of in this case was one for which the defendant is not liable, unless every one is liable for all damage done by superior force overpowering him, and using him or his property as an instrument of violence. The defendant, being without fault, was as innocent as if the pole of his wagon had been hurled on the plaintiff’s land by a whirlwind, or he himself, by a stronger man, had been thrown through the plaintiff’s window. Upon the facts stated, taken in the sense in which we understand them, the defendant is entitled to judgment. 1 Hilliard on Torts, ch. 3, 3d ed.; Losee _v._ Buchanan, 51 N. Y. 476; Parrot _v._ Wells, 15 Wall. 524, 537; Roche _v._ M. G. L. Co., 5 Wis. 55; Eastman _v._ Co., 44 N. H. 143, 156.

_Case discharged._

McCORD RUBBER CO. _v._ St. JOSEPH WATER CO.
SUPREME COURT, MISSOURI, MAY 25, 1904.
_Reported in 181 Missouri Reports, 678._

Appeal from Buchanan Circuit Court.

Action for damages for the flooding of plaintiff’s cellar with water caused by defendant’s negligence, whereby a large quantity of its goods stored in the cellar were damaged. Answer, a general denial.[296]

Defendant company supplied water distributed through pipes and mains from reservoirs. A service pipe from a main carried water to a building occupied by one August. There was a bursting in a “fish trap” used in connection with the service pipe. Water escaped on to the premises of August, and from thence to the adjoining premises of the plaintiff company. The jury found a verdict for the defendant. In view of the instructions given, this verdict must be regarded as negativing the allegations of negligence contained in the plaintiff’s pleading.

Judgment having been rendered for defendant, the plaintiff appealed.

[Arguments and part of opinion omitted.]

VALLIANT, J.... III. The plaintiff contends, however, that the defendants are liable regardless of whether they were guilty of any negligence directly causing the accident. This contention rests in the theory that one who brings into his premises anything that is liable to escape, and liable to inflict injury on his neighbors if it should escape, brings it there at his peril, and is responsible for any injury that it may cause.

That contention rests for its authority on the decision in Rylands _v._ Fletcher, L. R. 3 H. L. 330. In the briefs of the learned counsel for respondents, reference is made to a large number of authorities going to show that the doctrine of Rylands _v._ Fletcher has not been approved generally in America, and that it has been modified in England. Among the authorities so referred to are Griffith _v._ Lewis, 17 Mo. App. 605; Murphy _v._ Gillum, 73 Mo. App. 487; Cooley on Torts, 570; Losee _v._ Buchanan, 51 N. Y. 476; Brown _v._ Collins, 53 N. H. 442.

But in the facts, the case at bar is distinguished from Rylands _v._ Fletcher.

[After stating the facts of Rylands _v._ Fletcher, and quoting from the opinion of Lord Chancellor CAIRNS.] There is a wide difference between a great volume of water collected in a reservoir in dangerous proximity to the premises of another and water brought into a house through pipes in the manner usual in all cities, for the ordinary use of the occupants of the house. Whilst water so brought into a house cannot literally be said to have come in in the course of what might be called in the language above quoted of the Lord Chancellor “natural user” of the premises, yet it is brought in by the method universally in use in cities and is not to be treated as an unnatural gathering of a dangerous agent. The law applicable to the caging of ferocious animals is not applicable to water brought into a house by pipes in the usual manner.

The learned counsel for the plaintiff tried their case on the theory that the defendants were negligent, and that is the only theory on which they could have tried it.

* * * * *

_Judgment affirmed._[297]

GILES _v._ WALKER
IN THE QUEEN’S BENCH DIVISION, MARCH 27, 1890.
_Reported in Law Reports, 24 Queen’s Bench Division, 656._

Appeal from the Leicester County Court.

The defendant, a farmer, occupied land which had originally been forest land, but which had some years prior to 1883, when the defendant’s occupation of it commenced, been brought into cultivation by the then occupier. The forest land prior to cultivation did not bear thistles; but immediately upon its being cultivated thistles sprang up all over it. The defendant neglected to mow the thistles periodically so as to prevent them from seeding, and in the years 1887 and 1888 there were thousands of thistles on his land in full seed. The consequence was that the thistle seeds were blown by the wind in large quantities on to the adjoining land of the plaintiff, where they took root and did damage. The plaintiff sued the defendant for such damage in the county court. The judge left to the jury the question whether the defendant in not cutting the thistles had been guilty of negligence. The jury found that he was negligent, and judgment was accordingly entered for the plaintiff. The defendant appealed.

_Toller_, for the defendant. The facts of this case do not establish any cause of action. The judge was wrong in leaving the question of negligence to the jury. Before a person can be charged with negligence, it must be shown that there is a duty on him to take care. But here there is no such duty. The defendant did not bring the thistles on to his land; they grew there naturally. [He was stopped by the court.]

_R. Bray_, for the plaintiff. If the defendant’s predecessor had left the land in its original condition as forest land the thistles would never have grown. By bringing it into cultivation, and so disturbing the natural condition of things, he caused the thistles to grow, thereby creating a nuisance on the land just as much as if he had intentionally grown them. The defendant, by entering into occupation of the land with the nuisance on it, was under a duty to prevent damage from thereby accruing to his neighbor. The case resembles that of Crowhurst _v._ Amersham Burial Board, 4 Ex. D. 5, where the defendants were held responsible for allowing the branches of their yew trees to grow over their boundary, whereby a horse of the plaintiff, being placed at pasture in the adjoining field, ate some of the yew twigs and died.

LORD COLERIDGE, C. J. I never heard of such an action as this. There can be no duty as between adjoining occupiers to cut the thistles, which are the natural growth of the soil. The appeal must be allowed.

LORD ESHER, M. R. I am of the same opinion.

_Appeal allowed._[298]

GALVESTON, H. & S. A. R. CO. _v._ SPINKS
COURT OF CIVIL APPEALS, TEXAS, MAY 28, 1896.
_Reported in 13 Texas Civil Appeals, 542._

WILLIAMS, Associate Justice. This case is submitted upon the facts found by the court below, upon an assignment which questions the correctness of the conclusion of law based upon them. In brief, those facts are, that appellant owns in fee a strip of land upon which its railroad is laid, and on each side of which lie cultivated lands owned by appellee. Upon the land owned by appellant there stands a natural growth of tall trees which shade and injure the crops upon appellee’s adjacent land, and also saps such land of its fertility. For this injury to crops and land the judgment appealed from was rendered. No act of defendant is shown beyond the construction and maintenance of its road and its omission to cut down its trees, it having removed only such portion of them as was necessary to permit the repair of its road and the operation of its trains. We know of no principle of law which authorizes the judgment. The land and the trees are the property of appellant, and it has the same right to them that appellee has to his land and crops. The exercise of one right is not an invasion of the other. If the presence of the trees impairs the productiveness of appellee’s land, or if the cultivation of the latter would injure the trees, these results would constitute no wrong by one owner to the other, but would only be the incidents of their ownership. No breach of any duty owed by appellant to appellee is shown. It is not stated that the roots or the branches of the trees penetrate or overhang appellee’s land. If they did, appellee had the right to remove such roots or branches as entered or overhung his land, or if damage was caused by them, it may be true that he could maintain an action for such damage. Wood on Nuisances, 112, 113, 306.

But no such case is made here either in the statement of the cause of action or in the facts found by the court. It is not shown that appellee has not kept its right of way in proper condition for the safe and proper operation of its trains, but the contrary is inferable from the findings. Had it failed to do so, this might be a breach of the duty which it owed to those interested in the manner in which it conducted its road, but not of one due to appellee to protect his land and crops from such damage as that of which he complains. It is urged that as there is no statement of facts, we should presume that enough was shown to sustain the judgment. But the conclusions of the trial judge show affirmatively the facts upon which the judgment is rendered, and the conclusion of law based upon those facts was excepted to by appellant in the court below and is erroneous. It is not a case where there is an omission to find some fact, but one in which a ruling erroneous in law is grounded upon facts found.

_Reversed and rendered._

BACHELDER _v._ HEAGAN
SUPREME JUDICIAL COURT, MAINE, JULY TERM, 1840.
_Reported in 18 Maine Reports, 32._

The action was trespass on the case, to recover damages, alleged to have been done to the plaintiffs’ land, and to the fences and growth thereon, by the negligence of the defendant in setting a fire on his own land, near to the land of the plaintiffs, and in not carefully keeping the same.

At the trial before Emery, J., evidence was introduced by both parties. The counsel for the plaintiffs requested the judge to instruct the jury, that the plaintiffs were entitled to a verdict, if they were satisfied from the evidence, that the damage was occasioned by the defendant’s fire, unless he satisfied them that it was not through negligence or mismanagement on his part. The judge instructed the jury, that the burthen of proof was upon the plaintiffs to satisfy them, beyond a reasonable doubt, that the damage was occasioned by the defendant’s fire, and through the carelessness and negligence of the defendant in keeping the same; such carelessness and negligence being alleged in the plaintiffs’ declaration, and it not being contended by the plaintiffs that the fire was wilfully and maliciously set by the defendant. On the return of a verdict for the defendant, the plaintiffs filed exceptions to the ruling of the judge.[299]

The opinion of the Court was by

WESTON, C. J. By the ancient common law, or custom of the realm, if a house took fire, the owner was held answerable for any injury thereby occasioned to others. This was probably founded upon some presumed negligence or carelessness, not susceptible of proof. The hardship of this rule was corrected by the statute of 6 Ann. c. 31, which exempted the owner from liability, where the fire was occasioned by accident. The rule does not appear to have been applied to the owner of a field, where a fire may have been kindled. It may frequently be necessary to burn stubble or other matter which encumbers the ground. It is a lawful act, unless kindled at an improper time or carelessly managed. Baron Comyns states, that an action of the case lies, at common law, against the owner of a house which takes fire, by which another is injured, and adds, “so if a fire be kindled in a yard or close, to burn stubble, and by negligence it burns corn in an adjoining close.” Com. Dig. Action of the Case for Negligence, A. 6.

In Clark _v._ Foot, 8 Johns. R. 421, it was held, that if A. sets fire to his own fallow ground, as he may lawfully do, which communicates to and fires the woodland of B., his neighbor, no action lies against A., unless there was some negligence or misconduct in him or his servants. And this is a fair illustration of the common law, upon which the action depends. Negligence or misconduct is the gist of the action. And this must be proved. In certain cases, as in actions against innkeepers and common carriers, it is presumed, by the policy of the law, where property is lost which is confided to their care. But in ordinary cases, of which the one before us is not an exception, where the action depends on negligence, the burthen of proof is upon the plaintiff. This is common learning, and applies to all affirmative averments necessary to maintain an action. The defendant’s fire was lawfully kindled on his own land. It is an element appropriated to many valuable and useful purposes; but which may become destructive from causes not subject to human control. Hence the fact, that an injury has been done to others, is not in itself evidence of negligence. The party who avers the fact is bound to satisfy the jury upon this point, before he can be entitled to a verdict. In our opinion, the direction of the presiding judge was correct as to the burthen of the proof.

_Judgment on the verdict._[300]

HEEG _v._ LICHT
COURT OF APPEALS, NEW YORK, APRIL 6, 1880.
_Reported in 80 New York Reports, 579._

Appeal from judgment of the General Term of the Supreme Court in the Second Judicial Department, affirming a judgment in favor of defendant, entered upon a verdict. (Reported below, 16 Hun, 257.)

This action was brought to recover damages for injuries to plaintiff’s buildings, alleged to have been caused by the explosion of a powder magazine on the premises of defendant; also to restrain the defendant from manufacturing and storing upon his premises fire-works or other explosive substances.

The facts are sufficiently stated in the opinion.

MILLER, J. This action is sought to be maintained upon the ground that the manufacturing and storing of fire-works, and the use and keeping of materials of a dangerous and explosive character for that purpose, constituted a private nuisance for which the defendant was liable to respond in damages, without regard to the question whether he was chargeable with carelessness or negligence. The defendant had constructed a powder magazine upon his premises, with the usual safeguards, in which he kept stored a quantity of powder which, without any apparent cause, exploded and caused the injury complained of. The judge upon the trial charged the jury that they must find for the defendant, unless they found that the defendant carelessly and negligently kept the gunpowder upon his premises. The judge refused to charge that the powder magazine was dangerous in itself to plaintiff and his property, and was a private nuisance, and the defendant was liable to the plaintiff whether it was carelessly kept or not; and the plaintiff duly excepted to the charge and the refusal to charge.

We think that the charge made was erroneous and not warranted by the facts presented upon the trial. The defendant had erected a building and stored materials therein, which from their character were liable to and actually did explode, causing injury to the plaintiff. The fact that the explosion took place tends to establish that the magazine was dangerous and liable to cause damage to the property of persons residing in the vicinity. The locality [legality?] of works of this description must depend upon the neighborhood in which they are situated. In a city, with buildings immediately contiguous and persons constantly passing, there could be no question that such an erection would be unlawful and unauthorized. An explosion under such circumstances, independent of any municipal regulations, would render the owner amenable for all damages arising therefrom. That the defendant’s establishment was outside of the territorial limits of a city does not relieve the owner from responsibility or alter the case, if the dangerous erection was in close contiguity with dwelling-houses or buildings which might be injured or destroyed in case of an explosion. The fact that the magazine was liable to such a contingency, which could not be guarded against or averted by the greatest degree of care and vigilance, evinces its dangerous character, and might in some localities render it a private nuisance. In such a case the rule which exonerates a party engaged in a lawful business, when free from negligence, has no application. The keeping or manufacturing of gunpowder or of fire-works does not necessarily constitute a nuisance _per se_. That depends upon the locality, the quantity, and the surrounding circumstances, and not entirely upon the degree of care used. In the case at bar it should have been left for the jury to determine whether from the dangerous character of the defendant’s business, the proximity to other buildings, and all the facts proved upon the trial, the defendant was chargeable with maintaining a private nuisance and answerable for the damages arising from the explosion.

A private nuisance is defined to be anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another. 3 Bl. Com. 216. Any unwarrantable, unreasonable, or unlawful use by a person of his own property, real or personal, to the injury of another, comes within the definition stated, and renders the owner or possessor liable for all damages arising from such use. Wood’s Law of Nuis., § 1, and authorities cited. The cases which are regarded as private nuisances are numerous, and the books are full of decisions holding the parties answerable for the injuries which result from their being maintained. The rule is of universal application that while a man may prosecute such business as he chooses on his own premises, he has no right to erect and maintain a nuisance to the injury of an adjoining proprietor or of his neighbors, even in the pursuit of a lawful trade. Aldred’s Case, 9 Coke, 58; Brady _v._ Weeks, 3 Barb. 159; Dubois _v._ Budlong, 15 Abb. 445; Wier’s Appeal, 74 Penn. St. 230.

While a class of the reported cases relates to the prosecution of a legitimate business, which of itself produces inconvenience and injury to others, another class refers to acts done on the premises of the owner which are of themselves dangerous to the property and the persons of others who may reside in the vicinity, or who may by chance be passing along or in the neighborhood of the same. Of the former class are cases of slaughter-houses, fat and offal boiling establishments, hog-styes or tallow manufactories, in or near a city, which are offensive to the senses and render the enjoyment of life and property uncomfortable. Catlin _v._ Valentine, 9 Pai. 575; Brady _v._ Weeks, 3 Barb. 157; Dubois _v._ Budlong, 15 Abb. 445; Rex _v._ White, 1 Burr. 337; 2 Bl. Com. 215; Farrand _v._ Marshall, 21 Barb. 421. It is not necessary in these cases that the noxious trade or business should endanger the health of the neighborhood. So also the use of premises in a manner which causes a noise so continuous and excessive as to produce serious annoyance, or vapors or noxious smells; Tipping _v._ St. Helen’s Smelting Co., 4 B. & S. (Q. B.) 608; Brill _v._ Flagler, 23 Wend. 354; Pickard _v._ Collins, 23 Barb. 444; Wood’s Law of Nuis., § 5; or the burning of a brick kiln, from which gases escape which injure the trees of persons in the neighborhood. Campbell _v._ Seaman, 63 N. Y. 568; S. C., 20 Am. Rep. 567. Of the latter class also are those where the owner blasts rocks with gunpowder, and the fragments are liable to be thrown on the premises and injure the adjoining dwelling-houses, or the owner or persons there being, or where persons travelling may be injured by such use. Hay _v._ Cohoes Co., 3 Barb. 42; S. C., 2 N. Y. 159; Tremain _v._ Cohoes Co., 2 N. Y. 163; Pixley _v._ Clark, 35 id. 523.

Most of the cases cited rest upon the maxim _sic utere tuo_, etc., and where the right to the undisturbed possession and enjoyment of property comes in conflict with the rights of others, that it is better, as a matter of public policy, that a single individual should surrender the use of his land for especial purposes injurious to his neighbor or to others, than that the latter should be deprived of the use of their property altogether, or be subjected to great danger, loss, and injury, which might result if the rights of the former were without any restriction or restraint.

The keeping of gunpowder or other materials in a place, or under circumstances, where it would be liable, in case of explosion, to injure the dwelling-houses or the persons of those residing in close proximity, we think, rests upon the same principle, and is governed by the same general rules. An individual has no more right to keep a magazine of powder upon his premises, which is dangerous, to the detriment of his neighbor, than he is authorized to engage in any other business which may occasion serious consequences.

The counsel for the defendant relies upon the case of People _v._ Sands, 1 Johns. 78; 3 Am. Dec. 296, to sustain the position that the defendant’s business was neither a public nor a private nuisance. That was an indictment for keeping a quantity of gunpowder near dwelling-houses and near a public street; and it was held (Spencer, J., dissenting), that the fact as charged did not amount to a nuisance, and that it should have been alleged to have been negligently and improvidently kept. It will be seen that the case was disposed of upon the form of the indictment, and while it may well be that an allegation of negligence is necessary where an indictment is for a public nuisance, it by no means follows that negligence is essential in a private action to recover damages for an alleged nuisance. In Myers _v._ Malcolm, 6 Hill, 292, it was held that the act of keeping a large quantity of gunpowder insufficiently secured near other buildings, thereby endangering the lives of persons residing in the vicinity, amounted to a public nuisance, and an action would lie for damages where an explosion occurred causing injury. Nelson, C. J., citing People _v._ Sands, _supra_, says: “Upon the principle that nothing will be intended or inferred to support an indictment, the Court said, for aught they could see, the house may have been one built and secured for the purpose of keeping powder in such a way as not to expose the neighborhood;” and he cites several authorities which uphold the doctrine that where gunpowder is kept in such a place as is dangerous to the inhabitants or passengers, it will be regarded as a nuisance. The case of People _v._ Sands is not therefore controlling upon the question of negligence.

Fillo _v._ Jones, 2 Abb. Ct. Ap. Dec. 121, is also relied upon, but does not sustain the doctrine contended for; and it is there held that an action for damages caused by the explosion of fire-works may be maintained upon the theory that the defendant was guilty of a wrongful and unlawful act, or of default, in keeping them at the place they were kept, because they were liable to spontaneous combustion and explosion, and thus endangered the lives of persons in their vicinity, and that the injury was occasioned by such spontaneous combustion and explosion.

It is apparent that negligence alone in the keeping of gunpowder is not controlling, and that the danger arising from the locality where the fire-works or gunpowder are kept, is to be taken into consideration in maintaining an action of this character. We think that the request to charge was too broad, and properly refused. The charge however should have been in conformity with the rule herein laid down, and for the error of the judge in the charge, the judgment should be reversed and a new trial granted, with costs to abide the event.

All concur.

_Judgment reversed._[301]

DILWORTH’S APPEAL
SUPREME COURT, PENNSYLVANIA, OCTOBER 9, 1879.
_Reported in 91 Pennsylvania State Reports, 247._

Appeal from Court of Common Pleas, No. 2, of Allegheny County.

Bill in equity by Robinson and forty-seven others against Dilworth, to restrain Dilworth from erecting a powder magazine upon his lot in Penn Township, Allegheny County. The case was referred to a master, who recommended that an injunction should be refused and the bill dismissed. The facts are set forth in the opinion of this court. The court below thought that the public interest would be subserved by refusing the injunction; but in deference to the authority of Wier’s Appeal, 24 P. F. Smith, 230, a majority of the court entered a _pro forma_ decree for an injunction. Appeal was taken to the Supreme Court.[302]

TRUNKEY, J. [After stating general principles and quoting from the statement of the facts in Wier’s Appeal.]

After a careful revision of the master’s report by the court below, the facts found in this case, and which are well sustained by proof, are as follows: This magazine has been located so as to endanger as few persons and as little property as possible, and yet be reasonably accessible as a point of supply and distribution; it is more remote from population than the magazines generally in use throughout the United States, and it is doubtful if a better location could be made in Allegheny County. It is situated about two miles from East Liberty, the nearest closely built-up district, and is separated therefrom by intervening hills and ravines. It is in a sparsely settled locality, for the vicinity of a city, and land near it has not been, nor is it likely to be for some years, in demand for building purposes. That portion of Lincoln Avenue which terminates at a point five hundred feet from the magazine is very little travelled, very few people travel it within considerable distance of its terminus, having no occasion to do so; it was the wildest of the many absurd enterprises undertaken in Pittsburgh to carry city improvements into wild rural regions, expecting population to rapidly follow. The other public road, passing within twenty-two feet of the magazine, has for some time been almost abandoned by the people in the vicinity, and is used by about three farmers. The magazine is so situated that the force of an explosion would be down the ravine and away from the road. The greater distance of this magazine from a borough, or closely built-up district, the absence of demand of land for building purposes, and the unlikelihood of such demand in the vicinity, the little travel on the public road which passes near it, and the ravine opening from the road, are the chief points wherein this case differs from Wier’s Appeal. The dwellings and families near the magazine number about the same in one as the other. None will deny that the law protects the small and cheap home as it does the large and costly mansion, and the rights of a tenant are as sacred as those of his landlord. But it is equally undeniable that if a tenant hold by lease at will, or by month, and his landlord grants that a lawful and necessary, yet offensive or dangerous factory or magazine may be erected, the tenant has not a right of action for its prevention. If such structure were placed near tenant houses occupied by miners, where the mines are likely to be worked for considerable time, it would be a material fact to be weighed with others—almost of like weight as if the houses were owned by the occupants. Here the mine is nearly exhausted, a fact to be considered in reference to the probable increase of population in the neighborhood.

It was urged that the location being only two hundred and fifty-five feet from the boundary line of Pittsburgh, and five hundred feet from the end of Lincoln Avenue, is dangerous to life and property in the city. The facts, as we have seen, are that that end of the avenue is very little travelled, and is remote from the population of the city; and, without question, “the region of country in which the magazine is located is wild and broken as to its general surface, it is traversed by numerous ravines and hills, and altogether possesses a romantic and secluded aspect.” It is the real character of the location, with its surroundings, which determines its fitness, and not a city line two miles from city life, nor the unused and useless part of a graded and paved street extended beyond the visible city.

Confessedly, the demand for and consumption of powder in Pittsburgh and vicinity are very great, and it is indispensable in carrying on important branches of industry, and it would be inimical to the business interests of the community to trammel the sale of it with unnecessary restrictions and burdens. Besides the magazine at the United States Arsenal there are no others in Allegheny County, except those of a single company, and the Dilworth. In view of the whole case the master, and one of the judges of the Common Pleas, thought the injunction should be refused. The majority of the court, in a considerate opinion, concluded that the public interest would be subserved by refusing the injunction, and that the complainants were not entitled to an injunction, but for the ruling in Wier’s Appeal, on the authority of which they felt constrained to grant it. A decree was entered, with direction that it would not be enforced until the defendant could be heard on appeal. We fully agree with the court below, except that we do not think the principles in Wier’s Appeal, applied to the facts in this case, require an injunction to be granted.

_Decree reversed. Bill dismissed._