Wier's Appeal

The opinion of the court was delivered, October 20th 1873, by

Sharswoob, J.—

The great difficulty in all cases of this character is not in the ascertainment of the true rule of equity, but in the application of that rule to the facts. While it may be easy to draw the line between what is and what-is not a nuisance, which equity ought to enjoin, it is by no means so easy to determine' whether the circumstances of any particular case ought to place it on one side or the other of that line. It is rare that any number of men will he found to agree in their judgment upon such a question. One remark, however, may be hazarded, as preliminary to a brief consideration of the circumstances of this case, in which I think all will agree. There are many kinds of business, useful, and even necessary, in every large community, especially where manufacturing' is carried on on a large scale, which certainly are not nuisances in themselves, but which nevertheless become .so in view of the circumstances of the neighborhood in which it is proposed to establish them. The present Chief Justice, in his opinion at Nisi Prius, in Rhodes v. Dunbar, 7 P. F. Smith 275, enumerates twenty-nine kinds of such useful establishments which have been declared public nuisances. There is a very marked distinction to be observed in reason and equity between the case of a business long established in a particular locality, which has become a nuisance from the growth of population and the erection of dwellings in proximity to it, and that of a new -erection threatened in such a vicinity. Carrying on an offensive trade for any number of years in a place remote from buildings and public roads, does not entitle the owner to, continue it in the same place after houses have been built and roads laid out in the neighborhood, to the occupants of which and travellers upon which it is a nuisance. As the city extends, such nuisances should be removed to the vacant grounds beyond the immediate neighborhood of the residences of the citizens. This, public policy, as well as the health and comfort of the population of the city, demand: 7 P. F. Smith 275. It certainly ought to be a much clearer case, however, to justify a court of equity in stretching forth the strong arm of injunction to compel a man to remove an establishment in which he has invested his capital and been carrying on business for a long period, of time, from that of one who comes into a neighborhood proposing to establish such a business for the first time, and who is met at the threshold of his enterprise by a remonstrance-and notice that if he persists in his purpose, application will be 'made to a court of equity to prevent him. In the case* before us the defendant occupies this position.

It is not contended that a powder-magazine — a building for-storing large quantities of gunpowder — in the midst of a thickly-settled neighborhood, is not a nuisance. By the Act of Assembly-of March 20th 1856, Pamph. L. 137, it is made unlawful for any person or persons to have or keep any quantity of gunpowder or-gun-cotton in any house, store, shop, building, cellar or other place •within the city of Philadelphia (except in the public magazines, or in a quantity not exceeding two pounds for private use), unless in the manner provided in the act, which provisions in the main are, ■»that no person shall deal in the article without a license, and if licensed, shall not keep on hand more than twenty-five pounds, and shall have a painted sign distinctly legible to all passers-by, with the words “ Licensed to sell gunpowder,” and that every carriage for conveying the article shall have painted on each side, in letters distinctly legible to all passers-by, the word “ Gunpowder.” A public magazine has been erected, by the authority of the Commonwealth, near the mouth of the Schuylkill, and a state superintendent appointed, whose fees are regulated by law: Act of May 5th 1864, Pamph. L. 841. One of the general powers conferred upon boroughs by the Act of April 3d 1851, Pamph. L. 320, is “ to prohibit within the borough the carrying on of any manufacture, art, trade or business, which may be noxious or offensive to the inhabitants; the manufacture, sale or exposure of fireworks or other inflammable or dangerous articles, and to limit and prescribe the quantities that may be kept in one place of gunpowder, fireworks, turpentine or other inflammable articles, and to prescribe such safeguards as may be necessary.” Thus the legislature has recognised that the storing of gunpowder in large quantities in thickly-settled places, is a nuisance to be guarded against by public authority. But it is not confined to cities and boroughs. This court has acknowledged and declared it as a case clearly within the general rule of equity upon this subject, in the opinion of the majority as pronounced by Mr. Chief Justice Thompson, in Rhodes v. Dunbar, 7 P. F. Smith 274. After remarking upon the particular character and danger of the •establishment, the subject-matter of the complaint in that case, which was a steam planing-mill, which had long been established in the neighborhood, had been burned down, and the injunction asked for was against its re-erection, and which the majority of the court thought was not within the rule — he proceeds: “ These observations give no just grounds to draw the inference ■•that a powder-magazine or depot of nitro-glycerine, or other like explosive materials, might not possibly be enjoined even if not prohibited, as they usually are, by ordinance or law. It is not on the ground alone of their liability to fire, primarily, or even secondarily, that they may possibly be dealt with as nuisances, but on account of their liability to explosion by contact with the smallest spark of fire, and the utter impossibility to guard against the consequences, or set bounds to the injury, which, being instantaneous, extends alike to property and persons within its reach. The destructiveness of these agents results from the irrepressible gases once set ,i,n motion, infinitely more than from fires which might ensue as a consequence. Persons and property in the neighborhood of a burhing building, let it burn ever so fiercely, in most cases have a chance of escaping injury. Not so when explosive forces instantly prostrate everything near them, as in the instances of powder, nitro-glycerine and other chemicals of an explosive or instantly' inflammable nature.” This reason is so cogent that nothing could be added which would increase its force.

All that remains, then, is to inquire whether the circumstances of the neighborhood in which it was proposed to establish the magazine in question, are such as to bring it within the rule. Let us remember that it is a new erection which is asked to be enjoined, not the continuance of an old one.' Actual irreparable damage, actual depreciation of property, of course, does not exist. It is the prevention of these consequences which is the object of the process. Perhaps the immediate neighborhood is not so densely filled up— in connection with the evidence in the case of the careful construction and location of the building to guard against the worst probable consequences of an explosion — as would justify the court in ordering its removal. But, as we have shown, this is not the case. The neighborhood is not thickly settled, but it is fast filling up. Land is in demand for small buildings, villas and country residences, and its market value before this structure was contemplated was at a high figure. It is evident that it must sensibly affect that value and the growth of the district. This might not, however, be sufficient of itself. The borough of Sharpsburg is a thriving suburban village of this great western metropolis, where already many persons engaged in professional, mercantile or manufacturing business, have purchased sites, erected houses, and permanently reside, in order to escape from the smoke, soot and noise of the city. The distance of the structure complained of from the line of the borough is about half a mile. An explosion might do serious injury, at least, by breaking glass, even at that distance, and it is not beyond the reach of a projectile. It is all futile to sit down and calculate, as if by a mathematical formula, the force, size and direction of such a projectile. The natural laws which govern the direction of such forces are as yet undiscovered. It must, in the nature of things, be the merest conjecture. The evidence in the cause in regard to the explosion which occurred near Maysville, Kentucky, showed this very clearly. The house of the witness, Isaac Swartzwelder, was situated seven-eighths of a mile from the magazine. He said: “ The explosion bursted every window and door of my house right open; it took the windows right out. There was a rock weighed eighty pounds; some one weighed it next morning. It fell right back of where I was sleeping, within eighteen inches of where I was lying.” Another witness testified: “At the time the powder-house in Brooklyn, containing eight hundred or one thousand kegs of powder — eighteen to twenty tons — exploded, it broke glass at Fly-market, New York city, clear across the sound, about three-fburths of a mile.” One of the complainants, Mr. Weir, has his residence within five hundred and ten feet of the magazine, and there are several other residences further off, but still within the reach of the consequences of an explosion, if reliance is to be placed upon such facts as these. Even the witnesses for the defendant — some of them military men of great experience and sound judgment— admit there would be some danger from an explosion if it should occur, but they consider the danger as very slight, and that the location and construction of the building are well calculated to guard against' the worst consequences. But besides all this, a public turnpike-road runs very near the building. As the master reports, “ from the centre thereof to the magazine the distance is one hundred and fifteen feet, or ninety-five feet from the inner edge.” It is peculiarly exposed to danger, for the magazine is constructed in a ravine, funnel-shaped, opening out towards the road. It presents, with its rocky bed and sides, a huge mortar aimed directly at the turnpike. We may take what the master reports upon this subject. “Were the magazine in controversy to explode while four hundred to six hundred kegs of powder were stored in it, the direct effect of the explosive force would be to strike the walls of the excavation, blowing off all the surface and loose rock down to the solid slate rock. This dirt, rock, &c., would be thrown in all directions, and, if any of it was large enough, would be converted into projectiles and thrown a considerable distance from the place of explosion, and might do considerable harm; but the main force of the explosion would be directed towards the open side of the excavation on the north-west side of the magazine, converting the excavation and ravine, as it were, into a large mortar, blowing all before it, and destroying everything that might be standing on the turnpike, or on the opposite hillside, within the focus of the mouth of the ravine.”

We have come to the conclusion, then, that the complainants in the bill in the court below were entitled to the relief for which they prayed.

Decree reversed, and now it is ordered and decreed that this cause be remitted to the court below, with direction to issue an injunction conformably to the prayer of the bill restraining the defendant, Arthur Kirk, from maintaining a powder-house or powder-magazine on the premises described in the bill, and from erecting and constructing such a powder-house or magazine in that vicinity.

Costs of the appeal to be paid by the appellee.

Williams and Mercur, JJ. —

Upon the finding of the master, we think the bill in this case was properly dismissed, and would affirm the decree of the court below.