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.