State v. Excelsior Powder Mfg. Co.

• Decision Date: 24 March 1914
• Docket Number: No. 15950.,15950.
• Citation: 259 Mo. 254,169 S.W. 267
• Parties: STATE, by MAJOR, Atty. Gen., ex rel. HOPKINS et al., v. EXCELSIOR POWDER MFG. CO.
• Court: Missouri Supreme Court

169 S.W. 267

259 Mo. 254

STATE, by MAJOR, Atty. Gen., ex rel. HOPKINS et al., v. EXCELSIOR POWDER MFG. CO.

No. 15950.

Supreme Court of Missouri, Division No. 2.

March 24, 1914.

Rehearing Denied June 23, 1914.

1. NUISANCE (§ 62) — POWDER FACTORY.

While the mere fears of mankind will not alone create a nuisance, yet the maintenance of a powder factory close to a railroad and several populous villages constitutes a nuisance per se, where explosions are at any time liable to occur, and explosions doing damage outside of the factory grounds have occurred in the past.

2. NUISANCE (§ 64) — PUBLIC NUISANCE — FOREIGN CORPORATIONS — LICENSES.

A license under Rev. St. 1909, § 3037, admitting a foreign corporation to do business within the state, does not remove it from the law relating to nuisances, and a foreign corporation, licensed to manufacture powder, will be enjoined from carrying on its business notwithstanding it is lawful, where such business endangers persons within the vicinity.

3. NUISANCE (§ 62) — "PUBLIC NUISANCE."

The maintenance of a powder factory and magazine which endangered public highways and railroads, as well as neighboring villages, is a "public nuisance," which is defined as an offense against public order by unlawfully doing any act which annoys, injures, endangers, or interferes with the rights or property of a whole community or neighborhood.

4. NUISANCE (§ 82) — PUBLIC NUISANCE — PROCEEDING TO ABATE.

Where the petition showed that a proceeding to abate a powder factory as a public nuisance was brought by the Attorney General in the name of the state, and the evidence showed that the Attorney General, after satisfying himself as to the propriety of the suit, signed the petition and authorized it to be filed, the fact that counsel for the property owners injured by the powder factory prepared it and performed the legal services in the trial court is no reason to dismiss the suit on the ground that it was not prosecuted in the name of the real parties in interest.

5. NUISANCE (§ 81) — PUBLIC NUISANCE — RIGHT TO INJUNCTION.

The maintenance of a powder factory and magazine, deliberately established by defendant at a point on the outskirts of a populous city, without the knowledge or assent of adjoining landowners, will be enjoined as a public nuisance, where the presence of the factory and magazine, in which explosions were likely to occur, depreciated the value of surrounding property to an amount much greater than the actual value of defendant's plant, and endangered travelers on adjoining highways and railroads, even though the injuries from explosions in the past had not been of a serious nature, and defendant might lose the good will of its business if compelled to move.

6. EQUITY (§ 85) — LACHES — STATE.

Laches will not be imputed against the state.

7. NUISANCE (§ 84) — PROCEEDING FOR ABATEMENT — LACHES.

Where surrounding property owners prepared their petition for the abatement of a powder factory as a public nuisance, within two months after the first serious explosion, and it was filed in the name of the Attorney General a few days thereafter, there was no laches.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

Proceeding by the State by Elliott W. Major, Attorney General, on the relation of J. S. Hopkins and others, against the Excelsior Powder Manufacturing Company, to abate the defendant's powder factory and magazine as a public nuisance. From a judgment denying an injunction, relators appeal. Reversed and remanded.

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 the industries of that territory are such as to require a large amount of blasting powder, the manufacture of which is alleged to be necessary for the public welfare and defense; that there is no other blasting powder factory in Missouri; that the nearest railroad had constructed switches to defendant's plant for commercial purposes, and that defendant's buildings are at such distances from each other as to prevent one from being exploded by another, and that such buildings are located around the sides of a hill covered with timber, and that the danger of explosion in any of the buildings is exceedingly slight; that there is no danger from explosion except on defendant's ground, and that it keeps on hand only so much powder and dynamite as is necessary to supply the trade; that defendant manufactures only black blasting powder, which is the least dangerous explosive manufactured; that it employs a large number of men, and conducts its plant with care and caution, in accordance with the most approved methods; that the defendant's plant is not a nuisance or source of danger, but is a lawful work under said license; that defendant's plant represents an outlay of over $100,000, and that defendant has built up a business worth over $250,000, all of which would be destroyed by an injunction, thereby depriving it of its property without due process of law, and would take or damage said property without compensation, contrary to the state and national Constitutions (specifying the sections). It alleges that the suit is not prosecuted in the name of the real parties in interest, and states that those real parties are the relators named in the petition. The reply denied "each and every allegation of new and affirmative matter set up and contained in the answer."

Mr. Gorman, president of the defendant company, after investigating the question as to freight rates, the demand for explosives and a suitable site, selected 55 acres belonging to Peter Johnson, one of the relators, and his brother, as the best location for such a plant, and through Mr. Sloan, a real estate man, purchased it at $100 an acre, some time in the summer of 1904. Mr. Johnson testified that at the time he sold the land he asked the agent who came to purchase it what it was being bought for, and that he received the answer, "That is none of your business as long as you get the money." Mr. Sloan was a witness for defendant and did not deny the statement. Mr. Johnson still owns about a hundred acres adjoining the railroad west of defendant's land. The land thus purchased is south of Kansas City, about two miles from the terminus of the street car tracks. It is half a mile long north and south, bounded west by the "Frisco" Railroad.

On September 6, 1904, the defendant contracted with the railroad company for the construction of suitable switch tracks on defendant's grounds, and agreed to make certain stated payments to reimburse the railroad company for the expense of such construction. That contract contained the following:

"Provided, however, that in case the powder company is prevented, by fire, accident, or injunction, from making shipments to and from its said plant over said tracks at any time within said period of two (2) years from the time of commencement of operation of said powder plant, then said period during which said refund is to be made shall be extended for a term equal to the time said powder company is prevented from making shipments as aforesaid."

The mills and magazines of the defendant by their positions form a line something like the letter "S" with the top to the north. Beginning at the northeast there is a row of four "wheel mills" running west by south about 200 feet apart. In them the materials for making powder are mixed and ground together. Three hundred feet south by east of the most westerly wheel mill is the press, where the product of the wheel mills is pressed into cakes. Three hundred feet south by west of the press is the "corning mill," where the cakes are ground into powder. About the same distance south by east of the corning mill is the glaze mill or "glaze," where the powder is finished. About 300 feet east by south of the glaze is the packing house, where the powder is packed in 25-pound metal cans. The same distance south by west of the packing house is the powder magazine, where it is stored by the side of the railroad switch track ready for shipment. Four hundred feet southwest of the powder magazine, and 150 feet east of the railroad, is the dynamite magazine. The offices, power house, warehouses, and other buildings used in connection with them are in the northwest corner of defendant's land. A tramway connects all those buildings except the dynamite magazine. All the product of the corning mill during the day is placed in cylinders or barrels in the glaze. Those barrels turn on solid metal shafts 4½ inches in diameter and 8 or 10 feet long. They turn from 6 o'clock p. m. until as late as 6, 10, or 11 o'clock the next morning. The friction thus caused polishes the powder and produces heat, which dries it.

The Kansas City Southern Railroad Company runs its trains over the Frisco track, and altogether there are about 15 regular trains over it a day, 8 of them being...