Francis H. (Francis Hermann) Bohlen.

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alleged errors I will now briefly examine.

I have, therefore, reached the conclusion that no error was
committed upon the trial of this action, and it follows that the
order of the General Term must be reversed, and the judgment
entered upon the verdict must be affirmed, with costs. ^

All concur.

Order reversed and judgment accordingly.*

* Accord: Marshall v. IVelkvood, 38 N. J. L. 339 (1876); Brown v.
Collins, 53 N. H. 442 (1873), scmble, in which, while the precise question
involved was the liability of a defendant whose gentle horses had, without
fault in him, been frightened by a locomotive engine and had run away
and in their flight struck and injured the plaintiff's lamppost, Doe, C. J.,
discussed the rule in Fletcher v. Rylands and repudiates it in an able
opinion much of which is quoted in the notes to Fletcher v. Rylands. ante
p. 577 ; Garland v. Tozi.'ne. .^s X. H. 55 (1874); Pennsylvania Coal Co. v.
Sanderson, T13 Pa. 126 ("1886) semble. pp. 140-154. water which had naturally
flowed into the defendant's mine was artificially expelled (hv numpine") into
a neighboring stream. As to the liability in America of those damming
streams or building reservoirs, see note 14 to Fletcher v. Rylands, ante, p. 581.



TUCKACHINSKY V. LEHIGH & WILKES-BARRE COAL CO. 605

TUCKACHINSKY v. LEHIGH AND WILKES-BARRE COAL^^/l

COM PAX V.

Supreme Court of Pennsylvania, 1901. 199 Pa. 515.

Potter, J. : It is contended in this case, upon the part of the appel-
lant, that it was for the jury to say, whether or nut the powder house ^-~,
of the defendant company was a private nuisance, and if they so
found, that then the defendant was hable for damages caused by the
explosion, regardless of the question of negligence. When originally
located, the magazine was not in the vicinity of a residence district;
but with the growth of the community, the population has settled
near the shaft and near the magazine, in apparent disregard of any
danger from explosion.

At the time of the accident, the defendant company had four
and one half boxes of dynamite, and four and one half kegs of
black powder, stored in a wooden building, fourteen feet square and
twelve feet high, in an open space near the shaft of its colliery. The
mine was not in operation at the time, but some dead w^ork was
being done, in which powder was necessary.

The testimony show^s that the explosion was caused by light-
ning.

The plaintiff was standing in the doorway of her father's house,
and seems to have been thrown backwards and down'a flight of
stairs, by the concussion of the air, receiving injuries for which it
is here sought to recover damages. The trial court gave binding
instructions to the jury, to find for the defendant, in the following
language : "There is not, therefore, any evidence in the case of
any negligence on the part of the defendant, unless it consists in
its having the kind and quantity of explosives in the place at the
time, for the purpose and under the circumstances already stated.
As to this there is no controversy, no dispute, no question of fact
to be determined ; the only question to be decided is, whether under
the law. this state of facts constitutes negligence in itself, for which
plaintiff may recover in this action. X-hjs is a (lucstion, n ot of fact
for the jur y, but of law, th e duty of decidmg which is laid upuir
tBeTDTTTT In the discharge of this duty, we say to you. gentlemen,
that in our opinion, the fact that the defendant had at the time
and place of the accident, four boxes and a part of a box of dy-
namite, and four kegs and a part of a keg of black powder, in
its powder house, located as it was shown to be. did not in itself
constitute_n£glig£nce_ for wdiiclv the plaintifi Lis entitled to recover
in this action ; and we therefore instruct and direct you to return
a verdict in this case in favor of the defendant." This action of
the court is assigned as error. A nuisance has been defined a?
"that wdiich annoys and disturbs one in the possession of his prop-i
erty, rendering its ordinary' use or occupation physically uncomfort|
able to him.''^ The evidence in this case shows that the powdet



* Whether or not the storage of explosives, gunpowder, dynamite, etc.,
is or is not a nuisance per sc is to be decided . ,ion the circumstances of



^



b^



^:^^-



\



6o6 TUCKACHINSKV V. LEHIGH & WILKES-BARRE COAL CO.

magazine has been in use by the defendant company for more than
thirty years, and that the plaintiff has resided within about 700 feet
of it, for some sixteen years. Yet there is no testimony to show
that any apprehension of danger, or any fear of explosion, was felt,
or expressed by any one, during that time. No objection to the
location or maintenance of the magazine has been shown. The
explosives were stored in small quantities, to meet current needs.
Such materials are always dangerous, but as their use is essential
to the work of mining, it is impossible to protect absolutely, per-
sons or property in the immediate vicinity. The risk is similar to
that arising from the operation of steam boilers, and other ma-
chinery, and apparatus necessary to the prosperity of great communi-
ties.

Negligence in the care of the explosives or in the management
of the magazine, was neither charged nor proved. The only
question in the case, was as to whether or not the magazine was
in itself a nuisance. We can see nothing in the evidence to sup-
port such a finding. The explosives were kept only for use in the
mine, and were kept in small quantities. The explosion was caused
by no act of the defendant, but by a stroke of lightning. The trial
court could not have sustained a verdict for the plaintiff, upon
the evidence. His instructions to the jury, to find in favor of de-
fendant, w,ere proper, and the judgment is affirmed.^



each case, the nature of the building used as a magazine, the quantity of
explosives stored therein, its proximity to other buildings and to public
highways, the character of the neighboring country, etc., Heeg v. Liclit, 80
N. Y. 579 (1880) ; Weir's Appeal, 74 Pa. 230 (1873) ; Kinsey v. Koopman &
Geddcs, 116 Ala. 310 (1896) and Rudder v. the same, ib. :iS2 and cases cited
therein. In Dihvorth's Appeal, 91 Pa. •'243 (1879), the court set aside an
injunction issued by the court below restraining the defendant from erecting
a magazine which the master's report showed to have "been located so as
to endanger as few people and as little property as possible, and yet be
reasonably accessible as a point of supply and distribution" ; but see
McAndreds v. C oiler d, 42 N. J. L. 189 (1880), which held that even legislative
authority to build a tunnel does not excuse the collection of powder within
city limits in such quantities as to be dangerous and a nuisance per se, because
it is necessary to the convenient prosecution of the work to do so ; to fall
within the protection of such authority it must be shown that the work could
not have been done in any other way ; as to the limits of the exemption
from liability of one acting under legislative command or authority and
difference, in respect thereto, between public agents constructing public works
and "private corporations authorized by law to construct and operate works
for their own emolument, though (incidentally or ultimately) for the public
advantage", see Tinsman v. R. R., 2 Dretcher (26 N. J. L) 148 (1857) and
G. B. & L. Ry. v. Eagles, 9 Colo. 544 (1886).

* Accord: Heeg v. Lichf ; Kinney v. Kloopman, etc., and Rudder v. the
same, supra, note i and Kliebauer v. Western Fw ^" '^r?,, T 38 Cal. 407 (i90 3)j_
contra, Bradford & Gljicerine Lo. v. St. Mary's Mill Co., 60 Ohio St. "560"
(1899). It is held in the majority of jurisdictions that the bare fact of an
explosion is prima facie evidence of improper construction or management
of such a magazine throwing on the defendant the burden of proving that
the explosion was caused by persons over whom he had no control, (as m
Kliebauer v. Co., supra, where the magazine was blown up by a Chinese
fugitive from justice, who preferred death to arrest), or that he has observed
that high degree of care which the dangerous nature of his busmess required,
Judson V Giant Powder Co., 107 Cal. 549 fi895) and cases cited therein;
contra, Sowers v. McManus, 214 Pa. 244 (1906).



AINSWORTH V. LAKIN 607

AINSWORTH V. LAKIN.
Supreme Court of Massachusetts, 1902. 180 Mass. 397.

Tort for damage to property of the plaintiff caused by the
falUng of a wall alleged to have been upon the land and within the
control of the defendant's intestate, which had been left standing
after the building of which it formed a part had been destroyed
by fire. Writ dated December 2, 1899.

At the trial in the Superior Court, before Aiken, J., the jury
returned a verdict for the plaintiff in the sum of $4,257.28; and
the defendant alleged exceptions.

Knowlton, J. The defendant's intestate was the owner of
TTTeTancl and of the first two stories of the building which stood
upon it before the fire. The third story had been conveyed by
the former owners to Lewis, Noble and Laflin, trustees, to hold
during the life of the building. By the fire the life of the build-
ing was destroyed, and the ownership of Lewis and others in the
third story was terminated. Ainszvorth v. Mount Moriah Lodge,
172 Mass. 257. The defendant's intestate was left with his land
and the walls and some other parts of the first and second stories
standing upon it, and w'ith the walls of the third stor>', which
had previously belonged to the trustees, resting on the structure
below, and connected with it as a part of the realty. All rights
of other persons in the walls of the third story had come to an
end. As owner of the land and of the first and second stories of
the building, he was owner of everything upon it which was a
part of the real estate. Stockzvell v. Hunter. 11 J\Iet. 448. Shazvmut
National Bank v. Boston, 118 Mass. 125. His position in reference
to the walls of the third story was like that of a landlord whose
ten ant lea ves t^^ IfpgpH land at_lhe eiod^oLt he term with structures
lat he has erected upon it. wdiich have become a part ot the realty.
.These structures which are abandoned by the tenant immediately
becomes the property of the landlord to whose land they are affixed.
Burk V. HoIIis. 98 Mass. 55. Madigan v. McCarthy, 108 Mass. 376.
JVatriss v. First National Bank of Cambridge, 124 IMass. 571.
M elver v. Estahrook, 134 Mass. 5^0.

As owner of the land, and the structures upon it which were
subject to the power of gravitation and likely to do injury to
others if they fell, the defendant's intestate owed certain duties
tcTadjacea EtalidDw- no r s. His dutv imme diatelv after the fire was
a ffpctpd by the fnrf th:at until t hen he had had no ownership or
control rv^ Hip npppr part o f the wall, and that f.e condition ot
the' wKnlpJia^d ^PP" frrf'atly rhnnprprj Kv thp effect of the fire and
the destruction of the connected pa rts. For dangers growu*!*
out— of ^changes which he gould not prevent he was not immed>^
atelv liable. Grav v. Boston Gas Light Co. 114 Mass. 140. Mahonev
IfTLibbrx. 123 ]\Tass. 20. The jury were therefore rightly instructed
that before a'liability could p^row up against the defendant's intestate
after the fire, he was entitled to a reasonable time to make necessary



6o8 AINSWORTH V. LAKIN

investigation, and to take such precaution,s as were required to pre-
vent the wall from doing harm.

We come next to the question, ''What was his duty and what
was his liability after the lapse of such a reasonable time?" There
is a class of cases in which it is held that one who, for his own
purposes, brings upon his land noxious substances or other things
which have a tendency to escape and do great damage, is bound
at his peril to confine them and keep them on his own premises.
This rule is rightly applicable only to such unusual and extraordinary
uses of property in reference to the benefits to be derived from the
use and the dangers or losses to which others are exposed, as
should not be permitted except at the sole risk of the user. The
standard of duty established by the courts in these cases is that
every owner shall refrain from these unwarrantable and ejgttemely
dangerous uses of property unless he provides safeguards whose
perfection he guarantees. The case of Ry lands v. Fletcher, L. R.
3 H. L. 330; Fletcher v. Ryalls, L. R. i Ex. 265, rests upon this
principle. In this Commonwealth the rule has been applied to the
keeping of manure in a vault very near the well and the cellar of
a dwelling house of an adjacent owner. Ball v. Nye, 99 Mass. 582.
See also Fitzpatriek v. Welch, ly^ Mass. 486. That there are uses
of property not forbidden by law to which this doctrine properly may
be applied is almost universally acknowledged.^

This rule is not applicable to the construction and mainten-
ance of the walls of an ordinary building near the land of an
adjacent owner. In Quinn v. Crimmings, lyi Mass. 255, 258, Mr.
Justice Holmes shows that in reference to the danger from the
falling of a structure erected on land "the decision as to what
precautions are proper naturally may vary with the nature of the
particular structure." He says, "As it is desirable that buildings
and fences should be put up, the law of this Commonwealth does not
throw the risk of that act any more than of other necessary con-
duct upon the actor, or make every owner of a structure insure
against all that may happen, however little to be foreseen."

The principle applicable to the erection of common buildings
whose fall might do damage to persons or property on the ad::
jacent premises holds owners to a less strict duty. This prin-
ciple is that where a certain lawful use of property will bring to
pass wrongful consequences from the condition in which the prop-
erty is put, if these are no1( guarded against, an owner who makes
such a use is bound at his peril to see that proper care is takenjiui
every particular to prevent the wrong. Woodman v. Metropolitan
Railroad, 149 Mass. 335, and cases cited. Curtis v. Kiley, 153 Mass.
123. Pye V. Faxon, 156 Mass. 471. Harding v. Boston, 163 Mass.
14, 19, and cases cited. Cabot v. Kingman, 166 Mass. 403, 406.
^-ohbins v. Atkins, 168 ^Mass. 45. Thompson v. Lowell. Lawrence
&^HaverhiU Street Railway, 170 Mass. 577. Quinn v. Crimmings,
171 Mass. 255, 256. Boomer v. Wilbur, 176 Mass. 482. Sessengut

* See Fletcher Moulton, L. J., in Wing v. Bristol Tramways Co., L. R.
1909, 2 K. B. 652, p. 665.



FITZ SIMONS & CONXELL CO. V. BRAUN & FITTS 609

V. Posey, Gj Ind. 408. ^Inderson v. East, 117 Ind. 126. Chicago v.
Robbins, 2 Black, 418, 428. Ho man v. Stanley, 00 Penn. St. 464.
il/aj'cr 0/ iVt:t*:' }'o/7c v. Bailey, 2 Denio, 433. Bower v. Peate, i
Q, B. D. 321. 7"ar;'3' v. Ashton, i Q. B. D. 314. Gray v. Pnllen,
5 B. & S. 970, 981. D alt on v. .Ingus, 6 App. Cas. 740, 829. The
duty which the law imposes upon an owner of real estate in such a
case, is to make the conditions safe so far as it can be done by
the exercise of ordinary care on the part of all those engaged in
the work. He is responsible for the negligence of independent
contractors as well as for that of his servants. This rule is
applicable to every one who builds an ordinary wall which is
liable to do serious injury by falling outside of his own p remises.
It is the tt4e-t?u vvlirch - tlic4jecisi on m Uorliani v. Gross, 125 Mass.'

232, rests, and the case is not a~ P g^lt'TTity tnr nny Hnhility n f a

landowner that goes beyond this. See also Groy v. Harris, 107 Mass.
492; Shrezi'sbury v. Smith, 12 Cush. 177. The uses of property
governed by this rule are those that bring new conditions which
involve risks to the persons or property of others, but which are
ordinary and usual and in a sense natural, as incident to the owner-
ship of the land. The rule first referred to applies to unusual and!
extraordinary uses which are so fraught with peril to others thatl
the owner should not be permitted to adopt them for his own pur-
poses whithout absolutely protecting liis neighbors from injury or|
loss by reason of the use. In England this rule which was laid
down in Rylands v.* Fletcher, ubi supra, in reference to a reservoir
of water, has since been held to be inapplicable where the collection
of the water is in the natural and ordinary use of the land. Fletcher
v. Smith, 2 App. Cas. 781. See Carstairs v. Taylor, L. R. 6 Ex. 217.
So far as we know there is no case in which it has been applied to
the erection or maintenance of the walls of an ordinary building.



SECTION 4.
Liability of persons doing inherently dangerous work.

THE FITZ SniOXS & CONXELL CO. t-. BRAUX & FITTS.

Supreme Court of Illinois, 1902. 199 ///. 390.

BoGCS, J- : This in an appeal from the judgment of the Appellate
Court for the First District affirming the judgment entered in the su-
perior court of Cook county in favor of the appellees, against the ap-
pellant company, in the sum of $2750. The declaration was in trespass
on the case, and, in substance, alleged that the appellant company and
the city of Chicago, in the prosecution of the work of constructing a
tunnel intended for the use of the city in supplying the inhabitants
thereof with water, near, through or under certain premises belcn?-
ing to the appellees, in excavating and digging the tunnel exploded
heavy charges of dynamite, which so shook and jarred the fou'vl?-
tions, walls and floors of the building, on the premises of appellees,
and boilers, engines, machinery and fixtures in said building, that



6lO FITZ SIMONS & CONXF.LL CO. 7'. BRAUN £: FITTS

the foundations, walls and floors were made to sag, crack and sepa-
rate, which greatly, permanently and irreparably impaired the ap-
pearance, strength and stability of the said foundations, walls and
floors, and rendered said building less safe and useful and much less
valuable to plaintitls, and because said building was originally con-
structed with the intention and in such a manner that other and ad-
ditional stories would and could be added to it, which said additions
have been rendered impossible by such injuries to said building, as
the foundation and walls are now^ on account of the said injuries,
too weak to sustain additional weight. Each of the defendants
filed a plea of not guilty, and the cause was submitted to a jury for
trial. During the hearing of the cause the same was dismissed as to
the city of Chicago. \'erdict in the sum of $2750 was returned and
judgment entered thereon against the appellant company, and on
appeal the judgment was affirmed by the Appellate Court.

The remaining assignments of error ^ present for decision
the correctness of the rulings of the court in giving and refusing
instructions. We need not set forth in full the instructions with
relation to the liability of the appellant company for any injury or
damage resulting from the use of dynamite. 7^ ]i , e\- -anno un ce d. 4n^
substance, the proposition that one \yho makes use of an explosive
in the grdimd near the property of another^ when the natural and
probaBTe7"though^not the irievitabTeTresuff oLlhe-e-xplosion is injury
to such property of 'tFe~otRei% is liable for the resulting injury,
howeve^Jiigh a ^degree of-^are ac_skill may have been exercised in
makiijg_iis£ ,oi_ the explosive.

The evidence disclosed that appellant was engaged in con-
structing a tunnel under contract with the city of Chicago. The
contract forbade the use of explosives except where the excavation
was in rock. The tunnel was of the depth of about ninety feet
beneath the surface of the ground, and passed within a few feet of
the corner of appellees' building. The appellant company used dyna-
mite in excavating that portion of the tunnel, and the evidence
showed that the explosions of the dynamite caused the earth upon
which appellees' building stood, to shake and vibrate, and that the
walls of appellees' building w^ere cracked and injured because of
the explosions. The excavation at the time of the explosions in
question was not in rock, but in indurated clay, with some gravel
and boulders imbedded in it. It was clearly shown the excavation
through the clay and gravel might have been effected without the
use of explosives, but that it could be more cheaply done with the
aid of dynamite. As before said, however, the contract vvith the
city forbade the use of explosives except where the excavation was
in rock.

The performance of the w^ork of excavating the tunnel^ under-
neath the buildings of a populous city with dynamite was intrinsi-
cally dangerous, no matter how carefully and skillfully the explosions
were conducted. The nature and power of dynamite as an explosive



*A part of the opinion, discussing assignments of error in the trial
court's rulings upon questions of evidence, is omitted.



FITZ SIMONS & CONNELL CO. V. BRAUN & FITTS 6ll

have been demonstrated by universal experience, and it is a matter
of common knowledge that the use of dynamite as an explosive is
intrinsically dangerous, and of this the courts will take judicial
notice. (17 Am. & Kng. Ency. of Law, — 2d ed. — 909; Norwalk
Gaslight Co. v. Norwalk, 63 Conn. 527.) In some jurisdictions,
notably New York and New Jersey, it has been held that one who
discharges blasts upon ground where he has the lawful right to
blast, if he exercises due care in the process and manner of handling
the explosive, is not liable for an injury to adjacent property caused
by the mere disturbance of the earth or air, if no substance is thrown
upon the premises so as to constitute a physical invasion of it. In
New York (Benncr v. ^Itlaiitic Dredging Co. 134 X. Y. 156,) and
Massachusetts {Murphy v. City of Lowell, 128 Mass. 396,) the rule
was announced that in the construction of public works, as by the
general government or by cities, the contractors with government or
the municipal authorities could not be held liable for the vibrations
caused by explosions, in the absence of proof of want of care in the
performance of the work.- But a different rule obtains in other
jurisdictions. In California the opposing doctrine was stated
in Colton v. Onderdonk, 69 Cal. 155, thus: "The fact that the



*In New York this distinction is firmly established; in Hay v. Cohoes,
2 N. Y. 169 (1849), it was held that one who by blasting, done upon his
own land, casts debris directly upon the land of another is liable in trespass
irrespective of his motive and that in such case his carefulness or negli-
gence is immaterial, the language used by Gardiner, J., is very general ;
"The means by which it (the defendant's admittedly lawful and proper
improvement of his property) was prosecuted are illegal notwithstanding.
For they disturbed the rightful possession of the plaintiff and caused
a direct and immediate injury to his property; see accord, Bay v. Scott, 3
Md. 431 (1853) ; R. R. V. Eagles, 9 Colo. 544 (1886). Subsequent discisions
have both narrowed and extended the principle of this case, for, while in
Booth V. R. R. and French v. Vix, infra, note 3, it was held that there
could be no recovery unless foreign and physically' substantial matter was
thrown by the blasting directly upon the plaintiff's land so as to constitute
a technical trespass (though in Hay v. CohoeS one of the things which
it is said "would violate the right of domain," and which the defendant
might not do "by any act of their agents, neglect or otherwise, was "to
pollute the air upon the plaintiff's premises, Morley v. Pragnell, Cro. Car.
510"), recovery has been allowed without proof of negligence where a
laborer was struck while at work upon his employer's premises, St. Peter v.
Denison, 58 N. Y. 416 (1874), where a wayfarer was struck while travelling
on the highway by debris ejected by blasting done by the defendant upon
his adjacent premises, Dunham v. StdUvan, 161 N. Y. 290 (1900), and where
a traveller was struck while upon a city street by a stone thrown by a blast
set off by a contractor engaged in constructing an underground railway, "a
public improvement authorized and directed by the legislature" and who,
as such, had a right to use the street at least equal to that of the plaintiff.
Turner v. Deqron, McLean Co., 90 N. Y. Supp. 948 (1904). In Wheeler v.
Norton. 86 N. Y. Supp. 1095 (1904) it was held that a contractor, whose
blasting by its force had broken a water main, was liable without proof of
negligence to an adjacent owner whose house was flooded by the water so
allowed to escape. In Klepsech v. Donald, 4 Wash. 436 (1892"), it is held