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]]