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(No. 1.

Vol. 1.)

The conclusions to which we have come are:

First. That a common carrier cannot lawfully stipulate for exemption from responsibility, when such exemption is not just and reasonable in the eye of the law.

Secondly. That it is not just and reasonable in the eye of the law for a common carrier to stipulate for exemption from responsibility for the negligence of himself or his servants.

Thirdly. That these rules apply both to carriers of goods and carriers of passengers for hire, and with special force to the latter.

Fourthly. That a drover travelling on a pass, such as was given in this case, for the purpose of taking care of his stock on the train, is a passenger for hire.

These conclusions decide the present case, and require a judgment of affirmance. We purposely abstain from expressing any opinion as to what would have been the result of our judgment had we considered the plaintiff a free passenger instead of a passenger for hire.

Judgment affirmed.


[OCTOBER, 1873.]


In determining what constitutes a nuisance it is proper that all the circumstances of

the case be considered. The erection of a powder magazine near a public highway, in a growing neighborhood, enjoined, although not in or near a thickly settled neighborhood.

This was a bill in equity praying for an injunction to restrain the defendant from erecting and maintaining a powder house or magazine in Indiana township, Allegheny County, Pa., on the line of the Sharpsburg and Kittanning turnpike road, about half a mile north of the borough of Sharpsburg, and near the residences of the complainants. The answer admitted the fact that he was engaged in erecting the powder magazine, &c., but denied that there was any reason to apprehend danger to persons or property from an explosion.

Charles S. Fetterman, Esq., who was appointed master, submitted the following as his conclusions, viz. :

1. That the magazine in controversy, if erected and maintained, will not be a common nuisance.

2. That the complainants have failed to show, by any means whatever, any grounds upon which to base any reasonable apprehension of danger to themselves, their families, and property, from the present location of the magazine in controversy, or that they have sustained any real, 'actual damage to or depreciation in the value of their property; or that there is any reasonable apprehension of an explosion of the magazine while being used with reasonable care for the purpose for which it is intended.

(No. 1.

Vol. I.)

Weir v. Kirk.

John Barton, A. M. Brown f S. Schoyer, Jr., Esqrs., for appellants, cited Rhodes v. Dunbar, 7 P. F. S. 290, and claimed the rule to be that a powder magazine is a nuisance whenever it is so located as to cause injury to persons and property in case of an explosion.

George Shiras, Jr., J. W. Kirker f Thomas W. Kirker, Esqrs., for appellee, cited The People v. Sands, 1 Johnson, 78; Carpenter v. Cummings, 2 Phila. Rep. 74; Rhodes v. Dunbar, 7 P. F. S. 274; Richards' Appeal, 7. P. F. S. 105; Huckenstine's Appeal, 20 P. F. S. 102.

The opinion of the court was delivered by

SHARSWOOD, 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 be 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 residence 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 neighVol. I.]

Weir v. KIRK.

[No. 1.

borhood, 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 visible 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 3, 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 fire-works, or other inflammable or dangerous articles, and to limit and prescribe the quantities that may be kept in one place of gunpowder, fire-works, turpentine, or other inflammable articles, and to prescribe such safeguards as may be necessary.” Thus the legislature has recognized 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 which was 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 reërection, 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 lian bility 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 in motion, infinitely more than from fires which might ensue as a consequence. Persons and property in the neighborhood of a burning 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.

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(No. 1.

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 damages, 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, as — 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 — 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 laying." 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 fourths 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 Vol. I.]


(No. 1.

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 hill-side, 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. dissented.


[JUNE TERM, 1873.]




AU the powers of the ecclesiastical courts, which are necessary for the protection of

civil rights, and which have not been lodged elsewhere, may be exercised in this

country, by the courts of chancery. Courts of chancery, therefore, have jurisdiction to annul a contract of marriage on

the ground of fraud. The parties were married ; the complainant, the husband, supposing from her acts and otherwise that the defendant, the wife, was at the time of the marriage virtuous. Two months after the marriage the defendant was delivered of a fullgrown child. Held: that the want of chastity and concealment avoided the consent, and constituted a fraud upon which a court of equity would declare the marriage void ab initio. VANSYCKEL, J., dissenting, held that the court was without jurisdiction.

This was an appeal from the decision of the chancellor on a bill filed

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