The State ex rel. Hopkins v. Excelsior Powder Manufacturing Co.
| Decision Date | 23 June 1914 |
| Citation | 169 S.W. 267,259 Mo. 254 |
| Parties | THE STATE ex rel. J. S. HOPKINS et al., Appellants, v. EXCELSIOR POWDER MANUFACTURING COMPANY |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Thomas J. Seehorn, Judge.
Reversed and remanded (with directions).
Elliott W. Major, Attorney-General, J. McD. Trimble, John A. Eaton and Dudley W. Eaton for appellant.
(1) A powder mill, such as the defendant has, with its immense magazine for the storage of powder and its dynamite magazine located as this is near a trunk line railroad, near public highways, near a public school, and in the midst of a populous community with its hotels, churches, stores postoffices, shops and private residences, is a public nuisance. Joyce, Law of Nuisances, secs. 384, 385, 99; Garrett on Nuisances (3 Ed.), p. 43; Wood on Nuisances (3 Ed.), p. 6; Wilson v. Powder Mfg. Co., 40 W.Va. 413; Cheatem v. Shearon, 1 Swan (Tenn.), 213, 55 Am. Dec 734; Cumming v. Stevenson, 76 Tex. 644; Kleebauer v. Western Fuse, etc., Co., 69 P. 246; Appeal of Wier, 74 Pa. St. 230; Heeg v. Licht, 84 N.Y. 579; Rhodes v. Dunbar, 57 Pa. St. 274, 98 Am. Dec. 221; Hackney v. State, 8 Ind. 495; Burlington v. Stockwell, 5 Kan.App. 569; Kissel v. Lewis, 156 Ind. 233; Moses v. State, 58 Ind. 185; Ross v. Butler, 19 N.J.Eq. 294; Glycerine Co. v. Woolen Mfg. Co., 60 Ohio St. 560; Schnitzer v. Powder Mfg. Co., 160 S.W. 282. (2) It is no answer to the charge of maintaining a nuisance that the business was carried on in a convenient place, when it is in fact a nuisance. Joyce, Law of Nuisances, sec. 95; Powder Co. v. Tearney, 19 Am. St. 34; Fertilizer Co. v. Spangler, 86 Md. 562. (3) The trial court erred in undertaking to "balance conveniences" or estimate the difference between the injuries which the citizens of Missouri had sustained and the loss which the defendant would sustain from having its powder plant declared a public nuisance. No one has the right to create a nuisance by erecting such dangerous works, and then say he has expended large sums of money in so doing and that the neighboring property is of little value, or that he has erected such a big and expensive nuisance that it will have to be suffered. Joyce, Law of Nuisances, sec. 483; 21 Am. & Eng. Ency. Law (2 Ed.), 689; United States v. Luce, 141 F.416; Fertilizer Co. v. Malone, 25 Am. St. 595; Evans v. Fertilizer Co., 160 Pa. St. 209; Wente v. Fuel Co., 232 Ill. 526; Seacord v. People, 121 Ill. 623; State v. Kaster, 35 Iowa 221; Sullivan v. Steel Co., 57 A. 1065; Evans v. Fertilizing Co., 28 A. 709; Preserve Co. v. Beeman, 60 S.W. 849; Hough's Appeal, 48 Am. Rep. 193; 29 Cyc. 1161. (4) It is a uniform rule that a public nuisance may be abated at the suit of the Attorney-General or the County Attorney, and such suit may be prosecuted either without or upon the relation of persons especially injured by the nuisance. Wood on Nuisances, p. 938, secs. 819-820; State ex rel. v. Vandalia, 119 Mo.App. 406; State ex rel. v. Lamb, 237 Mo. 437; Smith v. McDonnell, 35 N.E. 141; People v. Lumber Co., 48 Pa. 374.
Kinealy & Kinealy and E. Wright Taylor for respondent.
(1) Defendant's plant, being a lawful manufacturing establishment for the operation of which it has been duly licensed by the State, is not and cannot be a nuisance per se. Realty & Imp. Co. v. Crockett, 158 Mo.App. 581; Loth v. Theatre Co., 197 Mo. 355; Randle v. Railroad, 65 Mo. 333; 29 Cyc. 1153, 1159-60; Joyce on Nuisances, sec. 16, p. 26; Payne v. Railway, 112 Mo. 17. And the mere fact that the plant is a powder factory does not make it an exception to the rule. Kinney v. Koopman, 116 Ala. 310; Dumesnil v. Dupont, 18 B. Mon. 809. (2) The plaintiffs wholly failed to make out a case of public nuisance against defendant's manufacturing plant. To prove that it is such it would be necessary for the evidence to show that by reason of its location and character it violated the rights of the public at large by subjecting them to a danger of such kind that: There was a reasonable anticipation of injury. Webb's Pollock on Torts, p. 45; Lawless v. Laclede L. Co., 72 Mo.App. 683; Dumesnil v. Dupont, 18 B. Mon. 800; Dilworth's Appeal, 91 Pa. St. 247; Whitfield v. Carrollton, 50 Mo.App. 104; Harper v. Oil Co., 78 Mo.App. 345; Dock Co. v. Libby, 45 N.Y. 449; United States v. Reeves, 38 F.404; United States v. Wilson, 28 F.707; Strode v. Box Co., 124 Mo.App. 520; Meifert v. Sand Co., 124 Mo.App. 496; Cleveland v. Gas Light Co., 20 N.J.Eq. 207. And that the injury to be apprehended was real and substantial in character, and such as to effect, physically, men of ordinary sensibilities and simple tastes. 29 Cyc. 1154, 1190-1; Joyce on Nuisances, sec. 88, p. 136; 1 Wood on Nuisances, pp. 4, 104; Kirchgraber v. Lloyd, 59 Mo.App. 62; Harper v. Oil Co., 78 Mo.App. 345. (3) The one explosion, that of the glaze, which exhibited an effect outside of the defendant's premises, was not sufficient to show that danger outside of the premises was to be anticipated. Beasley v. Transfer Co., 148 Mo. 420; Strode v. Box Co., 124 Mo.App. 523. (4) If it were the fact that defendant's plant had a tendency to decrease the value of surrounding property that would not be sufficient to constitute it a nuisance. 1 Spelling on Extra. Rem., sec. 396, p. 350; Parker v. Lake, C. & W. Co., 2 Black. 545. (5) Even where a nuisance is shown to exist a court of equity will not interfere by injunction unless: The damage or injury is actual, certain and substantial. 29 Cyc. 1226; Joyce on Nuisances, secs. 21, 22; 1 High on Injunctions, sec. 774, pp. 738-9; 2 Joyce on Injunctions, sec. 1079, p. 1558, note 193; Canal Co. v. Canal Co., 177 U.S. 296. And is continuous or constantly recurring. 1 Spelling, Extra. Rem., sec. 377, p. 335; Scheurich v. Light Co., 109 Mo.App. 424; Akers v. March, 19 App. D. C. 43; Hagge v. Railway, 104 F.391; Tuttle v. Church, 53 F.422. And is irreparable in character so that it cannot be compensated for by damages. 29 Cyc. 1223-4; 1 High on Injunctions, secs. 740, 817; Atty. Gen. v. Gas Con. Co., 3 Deg. M. & G. 320; Joyce on Nuisances, sec. 415, p. 592; Mayor v. Canal Co., 12 Pet. (U.S.) 98; Wood v. Sutcliffe, 8 Eng. Law & Eq. 217; Welton v. Martin, 7 Mo. 310; Bailey v. Culver, 84 Mo. 540. And the evidence makes out a strong case of urgent or pressing necessity, which is clear, manifest and strongly established. 29 Cyc. 1221, 1225; 2 Story's Eq. Jur., p. 296, sec. 924a; Joyce on Nuisances, sec. 88, p. 136; Railroad v. Ward, 67 U.S. 485; Parker v. Lake C. & W. Co., 2 Black. 545; Missouri v. Illinois, 180 U.S. 249; Sellers v. Parvis & Williams Co., 30 F.164; Arnold v. Klepper, 24 Mo. 277; Tanner v. Dallbrunn, 77 Mo.App. 262; Atty. Gen. v. Gas Con. Co., 3 Deg. M. & G. 325. (6) An injunction is not a writ of right but is granted or refused in the discretion of the court in view of all the facts and circumstances shown by the evidence and taking into consideration every phase of the case and including the relative advantages and disadvantages to the parties concerned. And the rules applicable to public and private nuisances are the same. 5 Pomeroy's Eq. Jur., sec. 542; Atty. Gen. v. Gas Con. Co., 3 Deg. M. & G. 320; 2 Story, Eq. Jur., sec. 959a; Good v. Fire Brick Co., 224 Pa. St. 503; 1 High on Inj., secs. 740, 776; Equitable L. Ins. Co. v. Brown, 213 U.S. 25; 2 Joyce on Injunctions, sec. 1067; Safe Dep. Bnk. v. Kenneth Est., 101 Mo.App. 395; Bailey v. Culver, 84 Mo. 540; Tanner v. Lindell Ry. Co., 180 Mo. 18; Baker v. McDaniel, 178 Mo. 474. (7) While this court must necessarily pass upon the evidence for itself yet deference will be paid to the findings of the chancellor, especially when backed by the opinion of four of his associates, all familiar with the locality and the persons concerned. Ancell v. Bridge Co., 223 Mo. 231; Lumber Co. v. Crommer, 202 Mo. 521; Danforth v. Foster, 158 Mo.App. 99; Smith v. Sedalia, 152 Mo. 299. (8) The evidence shows that this suit is not prosecuted by the State of Missouri or its Attorney-General but by individuals in the name of the State. The Attorney-General has no power to permit this to be done. State ex rel. v. Vandalia, 119 Mo.App. 419; 2 Joyce on Inj., sec. 1079, p. 1557; New Hampshire v. Louisiana, 108 U.S. 76; Poindexter v. Greenhow, 114 U.S. 270. (9) Even had there been anything of substance in plaintiffs' complaint their laches would have barred them of any relief. New York v. Pine, 185 U.S. 98; Galliher v. Caldwell, 145 U.S. 368; Stevenson v. Smith, 189 Mo. 466; Dexter v. McDonald, 196 Mo. 403; Pike v. Martindale, 91 Mo. 268.
This is a proceeding to abate the defendant's powder factory, powder magazine and dynamite magazine as a public nuisance, by injunction. The trial court found for the defendant and dismissed the bill. The petition is broad enough to cover any theory of the case shown by the evidence and prays that defendant be enjoined "from manufacturing or storing any powder, dynamite or other high explosives in any of its said buildings or on its said lands, or any part thereof, or on any other lands in the neighborhood in which the same are situated, and the plaintiff further prays for any and all other orders, judgments, decrees and relief to which in justice and in equity it may be deemed to be entitled, and for the costs of this suit."
The answer states that defendant was on August 3, 1905, licensed as a foreign corporation to do business in this State as a manufacturer of, and dealer in, blasting and sporting powders and high explosives, and that such license is still in effect.
That the location of defendant's plant was selected by it as the best that could be had in the western part of Missouri the eastern part of Kansas and the northwestern part of Arkansas. That...
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