and poisonous substances, and that in the process of crushing and milling said ores, various chemical poisons have been an are continually used, such as arsenic and other poisons, by said defendants; that in causing the water of said creek to pass through said mill or crusher when crushing the ore aforesaid, the lead and other mineral poisons therein contained and other poisonous substances used in milling said ores, enter into said water, are taken up by it and therein held in solution to an extent that said water became impure, unhealthy and dangerous to life, including the life of man, of animals and of vegetable life.

That the said defendants by using the said water as aforesaid and turning the same in its impure state into the stream, to flow down into and through said settlement, have erected a nuisance injurious to the health, offensive to the sense, which obstructs the full use and enjoyment of the property of the said settlers and these plaintiffs, annoys, injures and endangers their comfort, repose, health and safety, and renders them insecure in their lives and in the use of their property.

That there are no means by which said settlers can obtain water for any purpose whatever, except to use the water of said creek, and that in using the same since said defendants have erected said nuisance, a large amount of stock, the property of said settlers, has died by reason of its use; and which stock was of great value, to wit, four hundred dollars; also from its use one person has died.

These plaintiffs further say, that on the 27th day of January, 1877, the inhabitants of said settlement, at a meeting called for that purpose, passed a resolution authorizing and requesting these plaintiffs, in their own behalf and in behalf of said settlers, to take such measures as the law provides to cause said nuisance to be inquired into and abated, for the reason that these plaintiffs aver if the nuisance continue it will cause an irreparable injury to the farms, gardens and orchards of the said settlers, and produce an abandonment of their dwellings and break up their settlement.

The other facts appear in the opinion.

SNOW & SNOW, for appellants.

No brief on file for respondents.

EMERSON, J., delivered the opinion of the court.

The case comes to this court upon demurrer to the complaint which was sustained in the court below with leave to amend. The plaintiffs elected not to amend, and accordingly final judgment dismissing the complaint assed for the defendants.

The demurrer admits the facts as alleged in the complaint. From that it appears that the settlers of "Herriman's Fort," who authorized these plaintiffs to bring this suit in their behalf, many years ago constructed a ditch leading from Butterfield creek to said settlement, by means of which they appropriated all the water flowing in said creek, and that all the water is needed for agricultural and culinary purposes. That in 1876 the defendants erected, on the banks of said stream and above said settlement, an ore crusher, and commenced and still continue, and threaten to continue in the future, the business of crushing ore therewith. That in the prosecution of their said business they wrongfully and against the consent of said settlers take a portion of the water from said stream, and after passing it through their crusher, where it takes up and holds in solution certain chemical poisons contained in the ores, and other poisons used in its reduction, turn it back into the stream, where it mingles with the water flowing down to said settlement. That the water when it reaches the settlement is rendered so impure and poisonous as to be destructive of both animal and vegetable life. That by reason of its use in this impure state, one person had died, and a large amount of stock had been killed. The prayer, among other things, asks that the defendants be restrained from using the water in any manner inconsistent with the rights of said settlers, and for damages to be assessed.

The question is, does the complaint state such a case as entitles the plaintiffs to the relief asked, or any relief? Taking the statements of the complaint as true, we are of opinion that the plaintiffs are clearly entitled to their injunctive relief. They can not in this action recover damages for the destruction of property owned by them in severalty. The statement of the destruction of property and loss of life consequent upon the use of the water thus deteriorated in quality by the

defendants, may be regarded as surplusage, or as a mere evidence of fact going to show that the water was polluted to such an extent as to make it dangerous to life, and unfit for the uses for which it was appropriated.

The plaintiffs, as the owners or tenants in common of the water ditch and the water flowing therein, by virtue of their prior appropriation and the corruption of the water by the defendants, is a private nuisance. The right thus secured to the plaintiffs is to have the water flow to them in its natural state. If the use the defendants put the water to did not deteriorate it in quality, then the plaintiffs would have no right of action so long as the quantity was not materially changed. Suppose the defendants had diverted all or any considerable portion of the water flowing in this creek, there could be no doubt about the right of the plaintiffs to an injunction restraining the defendants from such diversion, upon a bill framed substantially like the one in this case. Taking the complaint as true, the injury to the plaintiffs is more serious than would arise from the mere diversion of the water, from its being rendered dangerous to human life. The rights acquired by the plaintiffs should be protected by the court.

The complaint, although inartificially drawn, sets out with sufficient clearness and certainty the character, or nature of the plaintiffs' claim; the character, nature and extent of the interference on the part of the defendants, and the character in which the plaintiffs sue. The injury complained of is to the common property of the plaintiffs, and constitutes a private nuisance. The demurrer should have been overruled.

The judgment of the court below is reversed and the cause remanded, with instructions to overrule the demurrer.

SCHAEFFER, C. J., and BOREMAN, J., concurred.

HEEG V. LICHT.

(80 New York, 579, 36 Am. Rep. 654. Court of Appeals, 1880.)

The keeping of a powder magazine in a place where, in case of explosion, dwelling houses may be injured, may or may not amount to a private nuisance; that depends upon the locality, the quantity kept, and other circumstances.

Keeping gunpowder when a nuisance Question for jury. In an action for injuries to plaintiff's buildings caused by the explosion of a powder magazine located near the buildings but beyond the territorial limits of a city, the court below charged the jury that they must find for the defendant, unless they found that the defendant carelessly and negligently kept the gunpowder upon his premises: Held, error. The fact that the magazine was liable to an explosion which could not be guarded against or averted by the greatest care, evinced its dangerous character, and might in some localities render it a private nuisance. In such a case the rule which exonerates a party engaged in a lawful business, when free from negligence has no application. The question should have been left to the jury to determine whether under all the circumstances the defendant was chargeable with maintaining a private nuisance, and answerable for the damages arising from the explosion.

Appeal from the judgment of the general term of the Supreme Court in the Second Judicial Department, affirming a judgment in favor of defendant entered upon a verdict. (Reported below, 16 Hun, 257.)

This action was brought to recover damages for injuries to plaintiff's buildings, alleged to have been caused by the explosion of a powder magazine on the premises of defendant; also to restrain the defendant from manufacturing and storing upon his premises fireworks or other explosive substances. The facts are sufficiently stated in the opinion.

PHILIP S. CROOKE, for appellant.

BENJAMIN F. DOWNING, for respondent.

MILLER, J.

Emory v. Hazard P. Co., 22 S. C. 476; 53 Am. R. 730; White v. Colo. Cent. R., 5 Dill. 429; 3 McCr. 559; Cheatham v. Shearon, 1 Swan, 213: Myers v. Malcolm, 6 Hill, 292; 41 Am. Dec. 744; McAndrews v. Collerd, 42 N. J. L. 189; 36 Am. Rep. 508.

This action is sought to be maintained upon the ground that the manufacturing and storing of fire-works, and the use and keeping of materials of a dangerous and explosive character for that purpose, constituted a private nuisance, for which the defendant was liable to respond in damages, without regard to the question whether he was chargeable with carelessness or negligence. The defendant had constructed a powder magazine upon his premises, with the usual safeguards, in which he kept stored a quantity of powder, which, without any apparent cause, exploded and caused the injury complained of. The judge upon the trial charged the jury that they must find for the defendant, unless they found that the defendant carelessly and negligently kept the gunpowder upon his premises. The judge refused to charge that the powder magazine was dangerous in itself to plaintiff and his property, and was a private nuisance, and the defendant was liable to the plaintiff whether it was carelessly kept or not, and the plaintiff duly excepted to the charge and the refusal to charge.

We think that the charge made was erroneous and not warranted by the facts presented upon the trial. The defendant had erected a building and stored materials therein, which from their character were liable to and actually did explode, causing injury to the plaintiff. The fact that the explosion took place tends to establish that the magazine was dangerous and liable to cause damage to the property of persons residing in the vicinity. The locality of works of this description must depend upon the neighborhood in which they are situated. In a city, with buildings immediately contiguous and persons constantly passing, there could be no question that such an erection would be unlawful and unauthorized. An explosion under such circumstances, independent of any municipal regulations, would render the owner amenable for all damage arising there. from. That the defendant's establishment was outside of the territorial limits of a city does not relieve the owner from responsibility or alter the case, if the dangerous erection was in close contiguity with dwelling houses or buildings, which might be injured or destroyed in case of an explosion. The fact that the magazine was liable to such a contingency, which could not be guarded against or averted by the greatest degree