Simpson v. Du Pont Powder Co.

• Decision Date: 13 May 1915
• Docket Number: 349.
• Citation: 85 S.E. 344,143 Ga. 465
• Parties: SIMPSON v. DU PONT POWDER CO. ET AL.
• Court: Georgia Supreme Court

85 S.E. 344

143 Ga. 465

SIMPSON v. DU PONT POWDER CO. ET AL.

No. 349.

Supreme Court of Georgia

May 13, 1915

Syllabus by the Court.

The court did not err in sustaining the demurrer to the petition.

Additional Syllabus by Editorial Staff.

A "nuisance per se" is an act which is a nuisance at all times and under any circumstances, regardless of location or surroundings.

Error from Superior Court, Walker County; Moses Wright, Judge.

Action by G. M. Simpson against the Du Pont Powder Company and another. Judgment for defendants, and plaintiff brings error. Affirmed.

Simpson brought suit against Du Pont Powder Company and Etna Powder Company for damages from the maintenance of an alleged nuisance. The substance of the petition is as follows Plaintiff is the owner of and resides upon lot of land No 104 in the ninth district and fourth section of Walker county. The defendants are maintaining, upon certain land adjoining and about 1,100 feet from petitioner's land five or more magazines in which are being stored "a large quantity of dynamite, powder, nitroglycerine, and other high and dangerous explosives. Such explosives are liable to be exploded at any time, caused by improper handling, lightning, or other causes, in the event of which persons who may be residing upon the property of petitioner would be subjected to the danger incident to such explosion, which renders the property of petitioner undesirable for residence property, or other uses, greatly deteriorating the value thereof." On account of the proximity of the magazines to petitioner's land about 70 acres of land are affected as above indicated, "and the same is reasonably worth in the market $35 per acre, and was worth said amount prior to the construction of said magazines and the storage therein of such explosives, and said land has been rendered practically worthless and has no market value with said dangerous erection and maintaining of magazines on the property as aforesaid." The defendants demurred, both generally and specially. The demurrer was sustained, and the plaintiff excepted.

W. H. Payne, of Chattanooga, Tenn., for plaintiff in error.

Williams & Lancaster and Garvin & Cantrell, all of Chattanooga, Tenn., for defendants in error.

HILL J.

"A nuisance is anything that worketh hurt, inconvenience, or damage to another; and the fact that the act done may otherwise be lawful does not keep it from being a nuisance." Civil Code 1910, § 4457. A private nuisance is one limited in its injurious effect to one or a few individuals, which may injure either the person or property or both; and in either case a right of action accrues. Sections 4454, 4456. From the section first above quoted it follows that not every hurt, inconvenience, or damage caused by one to another is a nuisance. The expression "may otherwise be lawful" shows the the act complained of, in so far as it causes "hurt, inconvenience, or damage to another," must be unlawful--that is, a violation of some right of plaintiff--to constitute a nuisance. Nuisance being an indirect tort, there is no presumption of damages from its maintenance; and the plaintiff, in order to recover in this case, must show the fact of the nuisance and consequent damages to her. The first question, therefore, for decision, is whether the storage by the powder companies of a "large quantity of dynamite, powder, nitroglycerine, and other high and dangerous explosives" is a nuisance per se.

"A nuisance at law or a nuisance per se is an act, occupation, or structure which is a nuisance at all times and under any circumstance, regardless of location or surroundings." 29 Cyc. 1153. See Joyce, Law of Nuisances, § 16. 'By far the larger class of nuisances is that which may be termed nuisances in fact or nuisances per accidens, and consists of those acts, occupations, or structures which are not nuisances per se, but may become nuisances by reason of the circumstances or the location and surroundings." 29 Cyc. 1154. By the act of 12 Geo. III, c. 61 (29 Stat. at Large, 166), entitled "An act to regulate the making, keeping, and carriage of gunpowder, within Great Britain, and to repeal the laws heretofore made for any of those purposes," we find the manner of keeping, the amount to be stored, the place of location of magazines, and the regulation of its transportation provided for, with penalties fixed for the violation of its provisions. And in People v. Sands, 1 Johns. (N. Y.) 78, 3 Am.Dec. 296, Thompson, J., said:

"The English statute and the statute of this state, regulating the manner of keeping and carrying gunpowder, are not declaratory acts, but contain new provisions and restrictions, which afford an inference that the common law stood in need of some aid to guard against the evils apprehended from the keeping of gunpowder. 4 Bl. Com. 168."

See the opinion of Kent, C.J., in the same case. It would seem, therefore, that at common law the right to own, possess, keep, and store explosives (dynamite and nitroglycerine not being then known), like other articles of property, was established, and that the statutes enacted from time to time in recognition of its dangerous characteristics, regulating its manner of use, and providing penalties for the violation of their provisions, were merely directory or regulative, and not declaratory or creative of new rights. Having seen that the right to deal in explosives was recognized at common law, the next question is: Is there a statute prohibiting its storage in this state? By Civil Code 1910, § 1655, it is provided:

"The several incorporated towns or cities of this state, within their corporate limits, and the ordinaries within their respective counties (out of said corporate limits) have authority to make and enforce all needful rules and

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