Wilson v. Phcenix Powder Manf'g Co.
| Decision Date | 03 April 1895 |
| Citation | 40 W.Va. 413 |
| Court | West Virginia Supreme Court |
| Parties | Wilson v. Phcenix Powder Manf'g Co. |
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, and any one injured in property by explosion of powder stored there may recover damages without proof of negligence in its operation.
Allegations of facts not necessary to maintain an action or defense are immaterial and surplusage, and need not be proven.
Where a judge is ex officio clerk of a court, then both certificates specified in section 19, chapter 130, Code, are not required, ' bis certificates as judge being sufficient.
Under section 4, chapter 13, Code, courts take judicial notice, without proof, of the law of another state, and in so doing may consult any book purporting to contain, state, or explain the same, and consider any testimony, information or argument offered on the subject.
Original deeds made outside of this state, and so certified as to warrant recordation in this state, are admissible in evidence here.
Actual possession being an element of complete legal title to real estate is prima J arte evidence of such title in the possesor. One in such position may maintain' trespass or trespass on the case for damage thereto, without further proof of his title.
Either actual or constructive possession will maintain trespass for damage to realty.
S. Evidence Estoppel Answer.
An answer in chancery in another suit is admissible as evidence of an admission therein in behalf of one though not a party to the suit in which it was filed, though it would not be admissible as an estoppel under the prinicple of res judicata.
Simms & Enslow for plaintiff in error, cited Code, c. 130, ss. 20, 21; 1 Johns. 78; 18 B. Mon. 800; 15 Wall. 537; 33 N. W. Pep. 224; 25 N. E. Rep. 259; 21 N. E. Rep. 864; 15 W. Va. 676.
Marcum, Peyton & Marcum for defendant in error, cited 74 Pa. St. 230; Wood's Law of Nuisance (2d Ed.) § (59; 80 N. V. 579; 3(5 Am. Rep. 654; 6 Hill 292; 19 Am. St Rep. 34, 3, 9, note; 36 Am. Rep. 508; 26 W. Va. 110; Id. 236; 3 Am. Dec. 296; Ohio Rev. Stat. (1890) § 533; Ohio Const. Art. IV, §16; U. S. Rev. Stat. §§ 905, 906.
The Phoenix Powder Manufacturing Company was sued in an action of trespass on the case in the Circuit Court of Wayne county by John G. Wilson, to recover damages to Wilson's dwelling house and other buildings resulting from an explosion of powder stored in buildings of the defendant company. The jury found a verdict for the plaintiff, subject to the defendant's demurrer to the plaintiff's evidence, on which demurrer the court gave judgment for the plaintiff, and the defendant resorted to the writ of error which we now decide.
There was no evidence to show negligence on the part of the defendant in the operation of its powder mill or in the storage or handling of its powder, and thus the question arises whether the plaintiff can recover by showing only the presence of the mill in the location it occupied, the storage of powder there, its explosion, and the consequent damage to the pi a in tiff's property, without proof of negligence.
Was the defendant maintaining a public nuisance? If it. was, it was engaged in the commission of a public wrong; and, injury resulting therefrom to the plaintiff, the defendant must repair such injury.
Powder and nitroglycerine are commodities of essential, if not primary, importance from their wide use in war and in the construction of railroads, roads, buildings and other varied uses, and their manufacture is a business entirely respectable and indispensable; but that consideration is not all controlling; that consideration is not alone to be regarded. The rights and safety of those not engaged in their manufacture must not be forgotten. They are agents of magical power and wrath. When the spark or touch of ignition meets them, their subtle force is awakened to instantaneous action an action giving no warning, and so potent that almost in the twinkling of an eye, before thought of self preservation can come, it wastes man and his home and his savings with irrepressible energy. Often the explosion comes from causes not discernible, which reasonable foresight or prudence can not see. Valuable as are these giants as auxiliaries to man in his great works, they must be limited to places and bounds of safety.
Here is a mill, making powder and other explosives, standing right on the bank of the Ohio river, upon which, day and night., boats bear thousands of precious lives and thousands of dollars of property, about two hundred yards from the great Chesapeake & Ohio Railroad and about three hundred yards from the Huntington & Big Sandy Railroad, both great highways of the public, with trains filled with passengers and property passing over them almost hourly, and about seventy five yards from a country road, also a highway in constant use. Six explosions occurred at this mill within three years, showing that it was a constant menace to life and property for a wide range around it, within which many people lived and worked, as its explosions threw large pieces of iron and large timbers out into the river, and some clear across into the town of Burlington, about one half mile away on the Ohio bank of the river, and into fields in Ohio, a mile distant. The buildings of the plaintiff which were injured in the explosion involved in this suit stood in Burlington. These explosions have injured many houses in Ohio, by shaking and jarring, damaging chimneys, walls, plastering, etc., from the force of concussion. Some of the explosions were terrible in their power and shock. This powder mill, with its great quantity of explosives in its storehouse, was a constant danger impending over those highways and all lawfully using them, and the people living in the neighborhood within the danger limit an ever present peril, day and night.
The manufacture and keeping of quantities of gunpowder, nitroglycerine and other explosives in or dangerously near to public places, such as towns or highways, is a public nuisance and indictable as such. It makes no difference whether carefully or negligently conducted and managed. Negligence is here no material element. If damage happen to a person from explosion, the injured party is entitled to compensation without proving negligence on the part of the defendant. He is injured by that which breaks the law the law against public nuisance. He is in no fault, while the other man is, and he has received damage from that other man's wrongful act. He has a right to immunity from this injury, and the other man owed him the duty of securing him immunity. The state is wronged by the maintenance of a nuisance which may at any moment take the lives and destroy the property of its people passing and repassing over its highways, and reposing and working in their accustomed places, and the particular person hurt has special cause of complaint, because he is especially injured. Talbott v. King, 32 W. Va. 0 (9 S. E. Rep. 48).
It is true the manufacturer owns his mill, and is engaged in lawful and honorable business; but he has violated that maxim, centuries old in the law, yet vital and indispensable in organized society, where everyone must use his property to earn bread, "Sic utere tuo ut alienum non laedas" (So use your own property that you injure not another). This lawful but dangerous business, being carried on where it is, is a public nuisance. No care can exempt it, situated where it is, from the charge of being a nuisance. Wood, Nuis. § 69; Wier's Appeal, 74 Pa. St. 230; Heeg v. Licht, 80 N. Y. 579; Myers v. Malcolm, 6 Hill 292; Powder Go. v. Tearney, 131 I11. 322 (23 N. E. Rep. 389); 19 Am. St. R. 34 and note p. 39; McAndrews v. Collerd, 42 N. J. Law 189.
In McAndrews v. Collerd, supra, the opinion says that "keeping powder, nitroglycerine, or other explosive substances, in large quantities, in the vicinity of a dwelling house or other place of business, is a nuisance per se, and may be abated by action at law'or injunction in equity, and, if actual injury results, the person keeping them is liable therefor, even though the act occasioning the explosion is due to other persons, and is not chargeable to his personal negligence." The reason is the act is wrongful, fraught with danger all the time, and it is illogical to call on one who, free from fault, has been injured to prove that the party who injured him conducted a business confessedly unlawful in a careless manner, and just wherein lie was careless. His whole action is negligent from being wrongful, so to speak. The authorities above cited dispense with proof of negligence by the plaintiff. Later New York cases overrule the case of People v. Sands, 1 Johns. 78, in this regard.
Now, if this mill were located in a secluded place one removed from highways being in itself a lawful business, the case would be different; it would not be a public...
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