Huntington v. Phcenix Powder Manuf'g Co.

• Court: West Virginia Supreme Court
• Writing for the Court: DENT, J.
• Citation: Huntington v. Phcenix Powder Manuf'g Co., 21 S. E. 1037, 40 W.Va. 711 (W. Va. 1895)
• Decision Date: 01 May 1895
• Parties: Huntington & Kenova Land Development Co. v. PhcenixPowder Manuf'g Co.

40 W.Va. 711

Huntington & Kenova Land Development Co.

v.Phcenix Powder Manuf'g Co.

Supreme Court of Appeals of West Virginia.

Submitted January 15, 1895

Decided May 1, 1895.

1. Nuisance.

A mill, manufacturing powder and other explosives, and storing 'the same on the premises, situate on the bank of the Ohio river and near two railroads and a public road, is a nuisance per se. Wilson v. Manufacturing Co., 40'W. Va. 413.

2. Nuisance Manufacturing Explosives Injunction.

When a company engaged in the manufacture of powder and other explosives, without misrepresentation or concealment on its part, is induced to locate its works at great expense on lands adjacent to the property, and for the prospective benefit of a land development and improvement company, such latter company can not, on discovering that the proximity of such powder works has diminished instead of enhanced the value of its adjoining territory, enjoin the continuance of such works as a nuisance.

Simms & ENSLOwfor appellant, cited 2 Wood Nuis, (3d. Ed.) § 820; 1 High Inj. (3d. Ed.) § 762; 13 W. Va. 476; 32 W. Va. 6; 34 W. Va. 804; High Inj. § 34, p. 786; 80 Va. 331; Wood Nuis., § 3, p. 4; Wood Nuis., § 820, p. 804; 9 Wallace 254; 18 13. Monroe 800; 1 Johnson 78; Eden Inj. 274; 11 Humphrey (Tenn.) 406.

Campell & Holt for appellees:

I. The determination of the question, whether nuisance or no-nuisance, when the matter complained of is not a nuisance per se, depends upon its location and the attendant circumstances; and the plant in question is not a "convenient" place. H. L. Cases, 648; Wood Nuis., p. 532, § 492; 34 W. Va. 804.

II. The utility, and even the necessity, of the business, is no defense. Neither does it make any difference that the best appliances known to science have been adopted, and. the greatest degree of care exercised in carrying iton, 3 L. R. 330; 18 Minn. 324; 23 N. E. Rep. 389; Wood Nuis., §§ 73, 115, 130, 142; 8 N. Y. 579; 1 Swan. 213; 2 Scam. 67; 39 111. 600; 41 111. 502; W 111. 24; 6 Hill 292; 2 N. Y. 159; 47 Ga. 263; 2 Scam. 434; 74 Pa. St. 230.

Ill.If several persons receive a private injury from a public nuisance, each man shall have his action, Ld. Raym. 938; 5 Rep. 72; Coke Litt. 56a; 81 Ky. 171; Cooley on Torts, p. 102, top.

IV. The remedy ad law in such cases is not plain, adequate and complete, and, equity will interfere, 10 N. Y. 19; 8 L. R. Ch. App. 125; Woods Nuis., § 794 and rases cited.

V. The reconstruction of the powder mill and magazine, after the explosions thereat, and with the knowledge of the appellee, does not estop appellee; for the latter protested, and actually tried to induce the abandonment of the old site.

Dent, Judge:

The Huntington & Kenova Land Development Company filed its bill in chancery in the Circuit Court of Wayne county at the December Rules, 1892, against the Phoenix Powder Manufacturing Company, for the purpose of perpetually enjoining the wTorks of the defendant as a nuisance.

The allegations of the bill are in substance as follows, to wit: That the plaintiff is a corporation for the purpose of laying out towns and selling lots therein, and doing and engaging in all manner of manufacturing and developing business of all kinds; that it owns about two thousand acres of valuable lands lying in the counties of Wayne and Cabell, along the Ohio river, between the city of Huntington and the towns of Kenova and Ceredo; that the greater part of this land has been laid off into lots, a large proportion thereof sold, and numerous manufactories in full operation thereon; that the defendant is the owner of about fifty acres of land, on which it has an extensive plant for the manufacture of powder, dynamite, and other explosive substances, and is engaged in the manufacture of the same, and keeps stores of such substances in large quantities continually on hand, thereby creating a dangerous and threatening nuisance, which is surrounded on three sides by plaintiff's land aforesaid, and especially that portion of it which has been laid off into a proposed town to be known as the"Town of Kellogg;" that by reason thereof, a large portion of plaintiff's lands had been rendered valueless for the purpose for which they were purchased, and can not be used in safety, even for the purpose of farming, and are thereby greatly diminished and decreased in value, and are undesirable and unsalable.

Defendant answered, admitting most of plaintiff's allegations, but denied that its works were a dangerous nuisance or had to any extent materially diminished the value of plaintiff's lands; that it had been induced to purchase the land and locate its works thereon by the original incorporators and principal stockholders of the plaintiff, immediately prior to its incorporation, for the prospective benefit of the plaintiff and to increase the value of its property and boom it on the market; that the plaintiff had used it for that purpose in its original prospectus and advertisements, and now that its boom had collapsed, it was endeavoring to shoulder the blame on to the defendant; that its plant has cost it at least two hundred and fifty thousand dollars, and it has built up an extensive and profitable business, and now to destroy it would produce irreparable loss, and be inequitable, especially, to do so at the instance of the plaintiff.

On a final hearing of the case the Circuit Court granted a perpetual injunction, and from its decree the defendant appeals.

There are virtually two questions presented for the consideration and determination of this Court.

First. Are the defendant's works a dangerous nuisance per set

Second. Is the plaintiff in a position to invoke the aid of a court of equity for their abatement? The first of these questions has been answered in the affirmative upon about the same facts in the case of Wilson v. Same (decided at this term of the Court) 40 W. Va. 413 (21 S. E. Rep. 1035.) The first clause of the first point of the syllabus is as follows, to wit: "A mill, manufacturing powder and other explosives, and storing the same on the premises situate on the bank of the Ohio river and near two railroads and a public road is a public nuisance." Judge Brannon in his able opinion elaborately discusses the question, and arrives at a conclusion which is sustained by reason and authority and was fully concurred in by the Court, and it becomes unnecessary to repeat what has been so exhaustively treated in that case here. That the defendant's immense works were a dangerous and threatening nuisance is established beyond controversy or doubt.

The second proposition is not so easily disposed of, as it presents a question of equitable interference of the gravest character and highest importance. It is plain from the evidence that the original promoters, landowners, and now the principal stockholders and officers of the plaintiff, for the benefit of the plaintiff in enhancing its lands and rendering them salable, induced the defendant to purchase the land of them and locate its works at the present place. This it did at an immense cost, and the works as they now stand are estimated at over two hundred and fifty thousand dollars in value. Afterwards it is discovered that instead of the defendant's works being an advantage to, they actully diminish and almost totally destroy the value of a large portion of its lands for the purpose for which purchased, and the plaintiff becomes as anxious to rid itself of the defendant as before its original promoters and many of its stockholders and officers were anxious to have it come and locate in their...