Topic 4. Keeping Dangerous Things on Premises

509. FLETCHER v. RYLANDS. (1865. 3 H. & C. 774, L. R. 1 Ex. 265, at 279, L. R. 3 E. & I. App. (H. L.) 330.) Blackburn, J. (in the Exchequer Chamber): at the sight of the rising cow. The plaintiff and his vehicle were injured. Is the defendant responsible? (1908, Marsh v. Koons, 78 Oh. 68, 84 N. E. 599.)

The defendant owned cattle in a district which had been quarantined by the Federal officers on account of the presence of cattle-disease. The defendant did not know that his cattle were diseased. He transported them out of the district, and the plaintiff's cattle caught the disease which the defendant's cattle in fact had. Is the defendant responsible? (1898, Croff v. Cress, 7 Okl. 408, 51 Pac. 558.)

The defendant sent an ox from the live-stock market to his own premises, passing through a city street. The ox was not unruly or vicious in any special way. Two men drove it; no halter was used, as oxen would probably not go quietly if led by halters. Opposite the plaintiff's shop, the ox, after having gone a few yards on the sidewalk, entered the open door of the shop. It was impossible to get him out for three quarters of an hour, and he did damage in the shop to the amount of £1. Is the defendant responsible per se? (1882, Tillett v. Ward, L. R. 10 Q. B. D. 17.)

The defendant walked down the road, with his dog following loose. The dog jumped into the plaintiff's field. Is the defendant responsible per se? (1823, Brown v. Giles, 1 C. & P. 118.)

The plaintiff was driving on the street. The defendant was leading a horse, which kicked at the plaintiff's buggy, and overset the plaintiff. Is the defendant responsible per se? (1903, Eddy v. Union R. Co., 25 R. I. 451, 56 Atl. 677.)

The plaintiff was an employee in the defendant's zoölogical garden, and his duty was to feed and care for the animals, including a certain camel. One day the camel seized, bit, and beat him. Is the defendant reponsible per se? (1909, Gooding v. Chutes Co., 155 Cal. 620, 102 Pac. 819.)

The defendant kept a swarm of bees, which attacked and stung the plaintiff while lawfully on the premises. Is the defendant responsible per se? (1903, Parsons v. Manser, 119 Ia. 88, 93 N. W. 86.)

The defendant kept a flock of pigeons in the ordinary manner. The pigeons' habit was to roost on the neighbors' premises, making a loud noise and defiling the place. Is the defendant responsible? (1896, Taylor v. Granger, 19 R. I. 410, 37 Atl. 13.)

The plaintiff, while lawfully on the defendant's premises, was attacked and injured by an elephant, kept there by the defendant for exhibition. Is the defendant responsible per se? (1890, Filburn v. People's Palace & A. Co., L. R. 25 Q. B. D. 258.)

NOTES:

"Negligence per se: horse left untied." (C. L. R., I, 563.) "Ferae Naturae." (C. L. R., VIII, 147.)

"Ferae naturae, animals." (H. L. R., V, 404; XII, 346.)

"Bees, damage by." (H. L. R., XIX, 615.)

"Trespass upon unfenced land by animals wrongfully on adjoining land.” (H. L. R., XX, 569.)

"General discussion of theories on which American courts base liability for injury by animals." (H. L. R., XXII, 527.)

"Bees, liability for injuries by." (M. L. R., IV, 666.)

ESSAYS AND CHAPTERS:

Thomas Beven, "The Responsibility at Common Law for the Keeping of Animals." (H. L. R., 1908-09, XXII, 465.)

Henry T. Terry, "Some Leading Principles of Anglo-American Law," c. VI, § 107, p, 82.]

We think that the true rule of law is that the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril; and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff's default; or, perhaps, that the escape was the consequence of vis major, or the act of God; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient. The general rule, as above stated, seems on principle just. The person whose grass or corn is eaten down by the escaping cattle of his neighbor, or whose mine is flooded by the water from his neighbor's reservoir, or whose cellar is invaded by the filth of his neighbor's privy, or whose habitation is made unhealthy by the fumes and noisome vapors of his neighbor's alkali works, is damnified without any fault of his own; and it seems but reasonable and just that the neighbor who has brought something on his own property (which was not naturally there), harmless to others so long as it is confined to his own property, but which he knows will be mischievous if it gets on his neighbor's, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property. But for his act in bringing it there no mischief could have accrued, and it seems but just that he should at his peril keep it there, so that no mischief may accrue, or answer for the natural and anticipated consequence. And upon authority this we think is established to be the law, whether the things so brought be beasts, or water, or filth, or stenches.

510. HAY v. THE COHOES COMPANY

COURT OF APPEALS OF NEW YORK. 1848

2 N. Y. 159

HAY sued the Cohoes Company, a corporation chartered by act of the legislature (Stat. 1826, p. 72), in the Court of Common Pleas of Albany County. The declaration, which was in case, alleged, among other things, that the defendants at &c., by their agents and servants wrongfully and unjustly blasted and threw large quantities of earth, gravel, slate and stones, upon the dwelling house and premises of the plaintiff, and shut and darkened the windows of said house, obstructed the light, and broke the windows, doors, &c. to the damage of the said plaintiff. Plea, not guilty. On the trial the plaintiff gave evidence tending to prove his declaration, and, among other things, that the agents of the defendants, in excavating a canal upon land of which they claimed to be owners, knocked down the stoop to his house and part of his chimney, and, as it appeared, for the purpose of protection, placed boards, or rough window-blinds, on all the front windows of the plaintiff's house, by which the light was obstructed, &c. The defendants moved for a nonsuit, and among other things, insisted that to make them liable it was incumbent on the plaintiff both to aver and prove that there was negligence, unskilfulness, wantonness or delay, and this the plaintiff had failed to do. The Court of Common Pleas non

suited the plaintiff, to which an exception was taken. On error brought, the Supreme Court reversed the judgment, and granted a new trial, from which decision the defendants appealed to this Court.

D. Wright, for appellants.

E. F. Bullard, for respondent.

GARDINER, J., delivered the opinion of the Court.

The defendants insist that they had the right to excavate the canal upon their own land, and were not responsible for injuries to third persons, unless they occurred through their negligence and want of skill, or that of their agents and servants.

It is an elementary principle in reference to private rights, that every individual is entitled to the undisturbed possession and lawful enjoyment of his own property. The mode of enjoyment is necessarily limited by the rights of others otherwise it might be made destructive of their rights altogether. Hence the maxim "sic utere tuo,” &c. The defendants had the right to dig the canal, the plaintiff the right to the undisturbed possession of his property. . . .

No one questions that the improvement contemplated by the defendants upon their own premises were proper and lawful. The means by which it was prosecuted were illegal notwithstanding. For they disturbed the rightful possession of the plaintiff and caused a direct and immediate injury to his property. For the damages thus resulting, the defendants are liable. Without determining the other questions discussed upon the argument, we think, upon the ground above stated, that the judgment of the Supreme Court should be affirmed. Judgment affirmed.

511. WILSON v. PHOENIX POWDER

MANUFACTURING COMPANY

SUPREME COURT OF APPEALS OF WEST VIRGINIA. 1895

40 W. Va. 413, 21 S. E. 1035

BRANNON, Judge. 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 plaintiff'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 cannot 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 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. 6 (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. Co. v. Tearney, 131 Ill. 322 (23 N. E. Rep. 389); 19 Am. St. R. 34 and note p. 39; McAndrews v. Collerd, 42 N. J. Law, 189. . . .

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 he 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 nuisance, and to recover injury from an explosion I apprehend the plaintiff must show negligence on the defendant's part. But it is contended that as the declaration alleges negligence on the part of the defendant, it must be proven. That allegation was unnecessary, immaterial and surplusage, and the law does not require anything but material allegations to be proven. · State v. Howes, 26 W. Va. 110; State v. Hall, 26 W. Va. 236; 1 Greenl. Ev. 51. . . .

I suppose the injury to the plaintiff's property was so direct and immediate from the explosion as to warrant an action of trespass under the strict principles of the common law. But that is irrelevant, as, the