The storage of dynamite on Powder House contractor, who for many years has been island was not a nuisance per se. engaged under contract with the government in deepening and widening the channel in the Detroit river, at a point commonly known as "Lime Kiln crossing." This work necessitates the use of large quantities of dynamite for blasting the rock which forms the bed of the river at this point. It appears that this work is still going on, and there will likely be spent by the government in this neighborhood for this purpose about

Joyce, Nuisances, §§ 12. 384; Tuckachinsky v. Lehigh & W. B. Coal Co. 199 Pa. 515, 49 Atl. 308; Kleebauer v. Western Fuse & Explosives Co. 138 Cal. 497, 60 L.R.A. 377, 94 Am. St. Rep. 62, 71 Pac. 617; Kinney v. Koopman, 116 Ala. 310, 37 L.R.A. 497, 67 Am. St. Rep. 119, 22 So. 593; Dumesnil v. Dupont, 18 B. Mon. 800, 68 Am. Dec. 750; Wharton, Crim. Law, § 2366.

Injunction is a matter of grace, and not $6,000,000.

of right.

Edwards v. Allouez Min. Co. 38 Mich. 50, to 1879, dynamite thus needed was stored 31 Am. Rep. 301.

It appears from the record that, prior on Fox island, and in that year an explosion took place. The report made by the United

Richards, Circuit Judge, delivered the States assistant engineer to General Weitzel, opinion of the court:

The defendant, Michael Sullivan, is a account of location, quantity, and surrounding circumstances, such storing was danger

ous.

And in Laflin & R. Powder Co. v. Tearney, 131 III. 322, 7 L.R.A. 262, 19 Am. St. Rep. 34, 23 N. E. 389, it was held that a powder magazine so situated that it was liable to inflict serious injury upon the person or property of one residing near by in case of an explosion was a private nuisance, and liability for such injury was not avoided by care, or by lack of negligence, in keeping the powder.

then in charge of the work, leaves it to be inferred that the greater part of the nitrowhere they had deposited about 600 pounds of powder in a wooden building, insufficiently secured and protected, and which was located near a lumber yard and several dwelling houses.

So, in Heeg v. Licht, 80 N. Y. 579. 36 Am. Rep. 654, Reversing 16 Hun, 257, it was said that the keeping of explosive materials did not necessarily constitute a nuisance per se, as that question depended upon the locality, the quantity, and the surrounding circumstances, though the keeping of such materials in a place, or under circumAnd in Flynn v. Butler, 189 Mass. 377, 75 stances, where it would be liable, in case N. E. 730, in which recovery was allowed of explosion, to injure the dwelling houses for damages caused by an explosion, the or the persons of those residing in close rule was laid down that if, by reason of proximity, might constitute a private nuiits location, a magazine stored with dyna-sance, for which the person so keeping mite and gunpowder, as ordinarily used, came within that class of dangerous objects which, according to common experience, were likely to cause damage, or were considered so intrinsically harmful as to expose the persons or property of others to the chances of instantaneous injury or destruction, then the maintenance of the building so used became a constant menace to the safety of the immediate community, and hence constituted a nuisance. The court said that, on the inquiry of nuisance, the proximity of dwellings, or of highways, or of the usual facilities for public travel, or the density of the population, might be shown.

And in McAndrews v. Collerd, 42 N. J. L. 189, 36 Am. Rep. 508, it was held that the keeping of gunpowder, nitroglycerin, or other explosive substances, in large quantities in the vicinity of a dwelling house, or place of business, was a nuisance per se, and might be abated as such by an action at law. or injunction in equity; and that, if actual injury resulted therefrom, the person keeping them was liable therefor, even though the act occasioning the explosion was due to other persons, and was not chargeable to his personal negligence.

And in Myers v. Malcolm, 6 Hill, 292, 41 Am. Dec. 744, the court was of the opinion that the jury was justified in finding the defendants guilty of maintaining a nuisance

them was liable to respond in damages if injury to others resulted therefrom, regardless of the question whether he was chargeable with negligence.

And in Cheatham v. Shearon, 1 Swan, 213, 55 Am. Dec. 734, a powder house located in the populous part of a city, with large quantities of gunpowder stored therein, was held to be a nuisance per se, rendering its owner liable for damages to property resulting from its explosion, though that was caused by a stroke of lightning. The court said that the fact that it was liable to explode by means of lightning, against which no human agency could guard, was decisive of the question whether it was a nuisance or not.

And in Wilson v. Phoenix Powder Mfg. Co. 40 W. Va. 413, 52 Am. St. Rep. 890, 21 S. E. 1035, and in Huntington & K. Land Development Co. v. Phoenix Powder Mfg. Co. 40 W. Va. 711, 21 S. E. 1037. it was held that a mill manufacturing powder and other explosives, and storing the same on the premises, situated on the bank of the Ohio river, and near two railroads and a public highway, was a public nuisance; and that anyone injured in property by the explosion of powder stored there might recover damages without proof of negligence in its operation.

Upon these principles, it was held in Klee

glycerin was stolen and a fire started to con- | ed in the government work. The shanties ceal the theft. Shortly after this explosion, were insubstantial structures. One witness along in the early '80's, Sullivan, then en- said you could throw a cat through the gaged in the contract work, with the consent cracks. Dynamite required for the governof the government engineering officers, an- ment work was no longer manufactured, chored a scow over what is known as Powder but brought there and stored. On the 27th House island, located in the Detroit river, of June, 1906, about 20 tons were stored, about 2,000 feet from Grosse Isle, and used of which 500 or 600 boxes, or from 10,000 it in manufacturing and storing dynamite to 12,000 pounds, belonged to the defendant, for the Lime Kiln crossing work. After use the balance to the Dunbar & Sullivan Dredgfor some years, the scow was sunk in the ing Company, in which he was interested. shallow water and the present island was On the afternoon of the day mentioned, built up, largely with rock excavated from the dynamite exploded from no known cause. the Lime Kiln crossing. After thus con- At the time of the explosion, the complainstructing the island, some shanties were ant, Henderson, occupied 25 acres of land built and these were used, with the knowl-on Grosse Isle fronting on the Detroit river, edge and consent of the government engineer- and about 3,800 feet from Powder House ing officers, for the storage of dynamite need- island. The residence was a summer one, bauer v. Western Fuse & Explosives Co. 138 N. E. 164 (where the explosives were stored Cal. 497, 60 L.R.A. 377, 94 Am. St. Rep. 62, in a building near a landing on the Hudson 71 Pac. 617, that the storage of gunpowder river); Reilly v. Erie R. Co. 72 App. Div. by a fuse manufacturer in quantities neces- 476, 76 N. Y. Supp. 620, Affirmed without sary for his business was not, if the maga- opinion in 177 N. Y. 547, 69 N. E. 1130 zine was located in a proper place, suffi- (where a dynamite magazine was located on ciently removed from a residence neighbor- the outskirts of an unincorporated village, hood, and conducted with the utmost care, adjacent to a public highway leading to a nuisance per se, so as to create a liability the village, at a point where there were for injuries caused to neighboring proper- several inhabited houses within a radius ty by the malicious explosion of the maga- of 1,000 feet thereof); Prussak v. Hutton, zine by an employee. And the same con- 30 App. Div. 66, 51 N. Y. Supp. 761; Ciclusion was reached in Tuckachinsky v. Le-bulski v. Hutton, 47 App. Div. 107, 62 N. Y. high & W. B. Coal Co. 199 Pa. 515, 49 Atl. Supp. 166 (where a powder mill was situ308, the circumstances of which are suffi- ated within the limits of a city, within from ciently shown in HENDERSON V. SULLIVAN. 250 to 400 feet of dwelling houses, though And in Barnes v. Zettlemoyer, 25 Tex. the explosion was caused by a stroke of Civ. App. 468, 62 S. W. 111, the court de-lightning); Ricker v. McDonald, 89 App. clined to hold that the keeping of 35 to 45 Div. 300, 85 N. Y. Supp. 825 (where 100 pounds of dynamite, by a hardware mer- pounds of dynamite were kept at the corner chant, in his store, was in itself a nuisance of Park avenue and 41st street, in the city as being a constant menace to property in of New York, though stored there for use that vicinity, deeming that to be a question in public work). for the jury in view of evidence as to the difficulty with which dynamite exploded, except by concussion.

On the other hand, the storage of explosives was, in the following cases, held to be a nuisance, rendering the owner thereof liable for injuries to persons or property, without proof of negligence, under the circumstances parenthetically shown: Hazard Powder Co. v. Volger, 7 C. C. A. 130, 12 U. S. App. 665, 58 Fed. 152 (where the magazine contained a large quantity of powder, and was situated, in violation of an ordinance, within the limits of a city); Chicago, W. & V. Coal Co. v. Glass, 34 Ill. App. 364 (when situated just outside the limits of a city, within 50 rods of about 50 residences, though the explosion was caused by a stroke of lightning); Cameron V. Kenyon-Connell Commercial Co. 22 Mont. 312. 44 L.R.A. 508, 74 Am. St. Rep. 602, 56 Pac. 358 (where an amount of Hercules powder, in excess of the quantity allowed by law, was stored in a frame warehouse, within the limits of an incorporated city, in the vicinity of railroad depots and other buildings); Lounsbury v. Foss, 80 Hun, 296, 30 N. Y. Supp. 89, Affirmed without opinion in 145 N. Y. 600, 40

Upon the same principle, it was held in Ft. Worth & D. C. R. Co. v. Beauchamp, 95 Tex. 496, 58 L.R.A. 716, 93 Am. St. Rep. 864, 68 S. W. 502, that it constituted a nuisance for a railroad company unnecessarily and unreasonably to delay a carload of explosives on a switch in the vicinity of dwellings.

Attention should here be called to Fillo v. Jones, 2 Abb. App. Dec. 121, though it would seem to be but slight authority upon the question under consideration. This was an action for the death of the plaintiff's intestate, caused by an explosion of fireworks kept by the defendant in his store in New York city. The plaintiff's theory was that the defendant was guilty of a wrongful and unlawful act in keeping the fireworks at all at the place where they were kept, because they were in themselves liable to spontaneous combustion and explosion, thus endan gering the lives of persons in their vicinity, and that the injury complained of was caused by such a spontaneous combustion or explosion of the defendant's fireworks. The court said that it had "no doubt that a cause of action might have been made out upon this theory, and that, upon the evi

but was used from time to time through-, used for pleasure craft, sail boats, motor -out the entire year. The force of the explo- boats, fishing boats, etc. One channel runs sion shattered the windows in the house, and between Stony island and Grosse Isle which severely shocked the members of his family, passes quite near to the Powder House iswho were living there at the time. Similar land and joins the Sugar island chaninjury was done to dwellings on Grosse nel a few hundred yards below it. The Isle and elsewhere as near as the complain- Sugar island channel passes from the ant's to the explosion. Slight injuries were head of Bois Blanc island to Sugar island, inflicted on several people, but nothing of crossing the main stream at a distance from a serious nature. Two boys were fishing in Powder House island estimated from 80 to a sailboat in the river near Powder House 800 feet. The main ship channel lies 2 island when the dynamite exploded. Their mile or more to the east of Powder House boat was blown to pieces, but the boys were island, passing between Bois Blanc island rescued without any serious injury. and the Canadian shore. The Sugar island channel described was navigated at the time of the explosion by two large side-wheel steamers engaged in the excursion business between Detroit and Toledo. One of them ty of persons located or living and passing within certain distances therefrom.

The Detroit river is nearly two miles wide at the point where the explosion occurred. There are several channels for boats of considerable draught, while the whole river is dence admitted, it was partly a question for | the jury whether it was not made out." The opinion contains no further reference to this question, as it went off entirely on the admissibility of certain evidence. The case, however, is quite frequently cited by the courts in discussing this question.

So, in Wier's Appeal, 74 Pa. 230, an injunction was granted to restrain the erection of a powder magazine, which was to be situated in a tunnel-shaped ravine, opening out towards a public highway 95 feet

at the road, and about 1⁄2 mile from the line of a rapidly growing borough, and so near several residences as to bring them within the reach of the consequences of an explosion. Judge Sharswood, in delivering the opinion of the court, said that there were many kinds of business, useful and necessary, in every community, especially where manufacturing was carried on on a large scale, which certainly were not nuisances in themselves, but which became so in view of the circumstances of the neighborhood in which it was proposed to establish them, adding that to use a building in the midst of a thickly settled neighborhood for storing large quantities of gunpowder would cer tainly be a nuisance.

In all the cases just reviewed, the plain-distant, like a huge mortar aimed directly tiffs sought damages for past injuries caused by explosions. In those cases where the relief sought is the prevention of the erection or continued use of magazines of explosives, the same principles have almost invariably governed the courts in arriving at a decision. That is, the mere existence of a powder magazine in which explosives are stored does not render it a nuisance per se; but the question whether it is such a nuisance as will be restrained at the suit of one whose property or person is alleged to be threatened would seem to depend chiefly upon its location with reference to other property. Thus, in Remsberg v. Iola Portland Cement Co. 73 Kan. 66, 84 Pac. 548, it was held that an owner of buildings would be entitled to an injunction to restrain an adjacent owner from erecting a powder house for the storage of explosives near the former's buildings, and close to a public highway, if the building and the use of the magazine at the place intended would greatly endanger the plaintiff's property and the lives of his family, and if the defendant owned other lands upon which, without great inconvenience, such magazine could be erected and used without danger, or with much less danger, to persons and property. Upon the question whether the structure and the intended use thereof as a magazine for explosives would make it a nuisance per se, or whether a careless or negligent use thereof would be requisite to make it a nuisance, the court said that a lawful business was not generally a nuisance per se. but that it might become so by being located in an inappropriate place, or being kept in an improper manner; and that it was there- And in Feltz v. Delaware, L. & W. R. Co. fore largely a question of fact whether the 5 Lack. Legal News, 150, an injunction isstoring of a large quantity of explosives in sued to restrain as a nuisance the further close proximity to buildings was, when prep- use of a powder house, in which 1,500 to erly done, dangerous to the lives or proper-2,500 pounds of blasting powder were stored,

And in McDonough v. Roat, 8 Kulp, 433, an injunction issued to restrain the further keeping of dynamite and other explosives by a hardware merchant in an insecure and insufficient building, situated on a corner in the populous part of a borough. The court said that the maintenance of a powder magazine was a source of imminent danger to life and property within the immediate scope of its explosive force, and that when, without due regard for the safety of the lives of others in the selection of a site for its construction, it was located in or near a thickly settled district where an explosion would probably destroy the lives and buildings of persons not engaged in its maintenance, it was a nuisance that could be restrained by injunction, notwithstanding that the business interests of the community required the existence of such magazine somewhere in the neighborhood.

place; that this island has been approved by the government through its engineering officers, as a suitable place for storing dynamite, and the contract contains regulations to protect persons and property in the neigh

passed the scene within half an hour of the an injunction is a matter of grace, and not explosion. The force of the explosion de- of right (Edwards v. Allouez Min. Co. 38 stroyed the shanties containing the dynamite, Mich. 50, 52, 31 Am. Rep. 301); that the use but they have since been replaced by perma- of dynamite in this part of the river is necnent structures, and no doubt large quanti-essary in connection with the contemplated ties of dynamite will be stored there unless improvement, and it must be stored some the court intervenes. The case was brought in the state court, but removed to the court below, where, after a hearing of the complaint, in which it was prayed the defendant be permanently enjoined from storing at any point in the Detroit river, and particu-borhood from the result of such storage. It larly in any building or buildings situated on Powder House island, any dynamite or other mixture of nitroglycerin or high explosive, the bill was dismissed. There was no opinion. From this decree an appeal was taken to this court.

is therefore insisted that no case is presented which requires or warrants an injunction so broad as that prayed for.

We are inclined to question the legality of the occupation and improvement of Powder House island by the defendant under the The Detroit river being a navigable stream circumstances. It appears from the record and public highway, the complainant con- that the land now occupied by Powder House tends that the erection by the defendant, island was once submerged. We understand although with the consent of the government the title to such soil was in the state or engineers, of the island now known as "Pow- the riparian owners. The matter was thorder House island," and the construction oughly discussed in the recent case of United thereon of a powder house as described, con- States v. Chandler-Dunbar Water Power Co. stituted a trespass, and the storage on the 81 C. C. A. 221, 234, 152 Fed. 25, Affirmed island in the powder house of large and dan- by United States Supreme Court in 209 gerous quantities of dynamite which explod- U. S. 447, 52 L. ed. 881, 28 Sup. Ct. Rep. ed, damaging property and imperiling lives, 579. No formal action appears to have been and the contemplated storage of similar taken by the government or any officer therequantities there in the future, constitutes a of, giving the defendant the right to erect public nuisance, the continued existence of the island and construct the powder house which may and should be enjoined. On on it. All that was shown was at most a the other hand, the defendant insists that verbal permission and an acquiescence on

and which was located within 25 feet of the main street of a borough, and 200 feet from the plaintiff's residence, and 500 feet from 19 houses, and 1,100 feet from 81 houses, occupied by 104 families.

[tion was wild, remote from the population of the city, and was such as to endanger as few lives and as little property as possible, and the highway was little traveled. and the demand for powder in the vicinity was very great.

So, in Emory v. Hazard Powder Co. 22 S. C. 476, 53 Am. Rep. 730, not only an in- There is one case which would seem to junction issued to restrain its further use, support the proposition that the maintebut damages were allowed for the past main-nance of a magazine of explosives, if contenance of, a magazine used for storing large quantities of gunpowder, within 200 yards of the plaintiff's dwelling, and within 25 feet of a public road, to the great danger of the lives of the plaintiff, her family and servants, from explosion, and the lives and property of the public traveling on the road. And in Comminge v. Stevenson, 76 Tex. 642, 13 S. W. 556, in which, also, an injunction was sought to restrain the further use of a powder magazine, as well as damages for its past maintenance, the magazine in question was held to be a nuisance where it was between 300 and 400 feet of plaintiff's residence, and greatly reduced the value of his property.

On the other hand, in Dilworth's Appeal, 91 Pa. 247, the court, while admitting that the decision reached in Wier's Appeal, supra, was proper in view of the circumstances of that case, refused to restrain the erection of a powder magazine near the boundary line of a city, and within 500 feet of the end of a city avenue, because the loca

ducted without negligence on the part of its owner, will not, under any circumstances, be held a nuisance per se. That case is Dumesnil v. Dupont. 18 B. Mon. 800, 68 Am. Dec. 750, in which the court refused to hold a powder house to be a nuisance, and declined to restrain its further use, merely because of the possibility that its existence might result in injury to those residing in its vicinity, though the magazine was situated within 1⁄2 mile of a city, and within about 300 yards of the plaintiff's residence. The court based its conclusion chiefly, if not altogether, upon the ground that there was "very slight" danger of an explosion of a well-constructed powder house, carefully guarded and prudently managed.

This note is confined to cases involving real explosives,—that is, substances designed for use as explosives, and does not include cases involving those materials, such as gasolene, etc., not manufactured for explosive purposes, but which sometimes do explode accidentally.