at the December Rules, 1892, against the Phoenix Powder Manufacturing Company, for the purpose of perpetually enjoining the works of the defendant as a nuisance.

The allegations of the bill are in substance as follows, to wit: That the plaintiff is a corporation for the purpose of laying out towns and selling lots therein, and doing and engaging in all manner of manufacturing and developing business of all kinds; that it owns about two thousand acres of valuable lands lying in the counties of Wayne and Cabell, along the Ohio River, between the city of Huntington and the towns of Kenova and Ceredo; that the greater part of this land has been laid off into lots, a large portion thereof sold, and numerous manufactories in full operation thereon; that the defendant is the owner of about fifty acres of land, on which it has an extensive plant for the manufacture of powder, dynamite, and other explosive substances, and is engaged in the manufacture of the same, and keeps stores of such substances in large quantities continually on hand, thereby creating a dangerous and threatening nuisance, which is surrounded on three sides by plaintiff's land aforesaid, and especially that portion of it which has been laid off into a proposed town to be known as the "Town of Kellogg;" that by reason thereof, a large portion of plaintiff's lands had been rendered valueless for the purpose for which they were purchased, and can not be used in safety, even for the purpose of farming. and are thereby greatly diminished and decreased in value, and are undesirable and unsalable.

Defendant answered, admitting most of plaintiff's allegations, but denied that its works were a dangerous nuisance or had to any extent materially diminished the value of plaintiff's lands; that it had been induced to purchase the land and locate its works thereon by the original incorporators and principal stockholders of the plaintiff, immediately prior to its incorporation, for the prospective benefit of the plaintiff and to increase the value of its property and boom it on the market; that the plaintiff had used it for that purpose in its original prospectus and advertisements, and now that its boom had collapsed, it was endeavoring to shoulder the blame on to the defendant; that its plant has cost it at least $250,000, and it has built up an extensive and profitable business, and now to destroy it would produce irreparable loss, and be inequitable, especially to do so at the instance of the plaintiff. On a final hearing of the case the Circuit Court granted a perpetual injunction, and from its decree the defendant appeals.

There are virtually two questions presented for the consideration and determination of this Court.

First. Are the defendant's works a dangerous nuisance per se? Second. Is the plaintiff in a position to invoke the aid of a court of equity for their abatement?

The first of these questions has been answered in the affirmative

upon about the same facts in the case of Wilson v. Same (decided this term of the Court), 40 W. Va. 413 (21 S. E. Rep. 1035) [ante, No. 263, Book I]. . . .

The second proposition is not so easily disposed of, as it presents a question of equitable interference of the gravest character and highest importance. It is plain from the evidence that the original promoters, landowners, and now the principal stockholders and officers of the plaintiff, for the benefit of the plaintiff in enhancing its lands and rendering them salable, induced the defendant to purchase the land of them and locate its works at the present place. This it did at an immense cost, and the works as they now stand are estimated at over two hundred and fifty thousand dollars in value. Afterwards it is discovered that instead of the defendant's works being an advantage to, they actually diminished and almost totally destroyed the value of a large portion of its lands for the purpose for which purchased, and the plaintiff becomes as anxious to rid itself of the defendant as before its original promoters and many of its stockholders and officers were anxious to have it come and locate in their midst; that is, including its immediate predecessor, the Continental Powder Manufacturing Company, from whom defendant derives its title. . .

Is this equity? Should the plaintiff, a speculative corporation, be permitted to induce various kinds of manufacturers to purchase of its lands, make great outlays in creating plants, and then because plaintiff ascertains that any such manufactory is an injury to the sale of others of its lands, is it to have the privilege of calling upon a court of equity to destroy the property and investment of those who have been induced to purchase of it in good faith, and without any attempt to deceive it as to the character of the manufactory to be established? Plaintiff says, "I was mistaken." Equity says, "Make good the loss the defendant will incur, and you will be relieved of its obnoxious presence; otherwise, you must bear it as a burden of your own assuming. At least, a court of equity will not lend you its assistance under such circumstances. If you would be heard, come with clean hands and a righteous cause.' A person who licenses, permits, or acquiesces in the establishment of a costly and expensive nuisance can not invoke the aid of a court of equity, even though it prove more annoying and injurious than he anticipated, but he will be left to his remedy at law, if any. If he can not sue at law, neither can he sue in equity. 16 Am. & Eng. Enc. Law, 960; 2 Wood Nuisance, §§ 785, 804, 806; Hulme v. Shreve, 4 N. J. Eq. 116. "A person may so encourage another in the erection of a nuisance as not only to be deprived of the right of equitable relief, but also to give the adverse party an equity to restrain him from recovering damages at law for such nuisance." Williams v. Earl of Jersey, 1 Craig & P. 91; Carlisle v. Cooper, 21 N. J. Eq. 576; Eden, Injunctions, 274; High, Injunctions, § 756; Whitney v. Railway Co., 11 Gray 359; Swain v. Seamens, 9 Wall. 254.

For the foregoing reasons, the decree complained of is reversed, injunction dissolved, and bill dismissed.

684. SUSQUEHANNA FERTILIZER COMPANY v. MALONE COURT OF APPEALS OF MARYLAND.

73 Md. 268, 20 Atl. 900

1890

APPEAL from the Circuit Court for Baltimore County. This is an action for damages brought by the appellee against the appellant. The case is stated in the opinion of the Court. The cause was argued before ALVEY, C. J., ROBINSON, IRVING, BRYAN, FOWLER, and MCSHERRY, J.

W. L. Marbury, and Charles Marshall, for the appellant.
R. R. Boarman, and D. G. McIntosh, for the appellee.

ROBINSON, J., delivered the opinion of the Court. This is an action for a nuisance, and the questions to be considered are questions of more than ordinary interest and importance. At the same time, it does not seem to us, that there can be any great difficulty as to the principles by which they are governed. The plaintiff is the owner of five dwelling houses on Eighth Avenue in Canton, one of the suburbs of Baltimore City. The corner house is occupied and kept by the plaintiff as a kind of hotel or public house, and the other houses are occupied by tenants. On the adjoining lot is a large fertilizer factory, owned and operated by the defendant, from which the plaintiff alleges noxious gases escape, which not only cause great physical discomfort to himself and his tenants, but also cause material injury to the property itself...

...

It is said there was a fertilizer factory on the lot on which the appellant's works are now erected, and that this factory was used for the manufacture of sulphuric acid and fertilizers several years before the plaintiff built his house, and that the plaintiff has no right to complain because he came to the nuisance." But this constitutes no defence in this action. . . . The appellant had no right to erect works which would be a nuisance to the adjoining land owned by the plaintiff, and thus measurably control the uses to which the plaintiff's land may in the future be subject. It could not, by the use of its own land, deprive the plaintiff of the lawful use of his property. The question of "coming to a nuisance" was fully considered in Bliss v. Hall, 4 Bing. N. C. 183, where, in an action for a nuisance arising from carrying on the business of making candles, the defendant pleaded that he had carried on his business at the same place, in the same manner, and to the same extent, three years before the plaintiff became possessed of his messuage. In sustaining the demurrer to this plea TINDAL, Chief Justice, says: "That is no answer to the complaint in the declaration;

for the plaintiff came to the house he occupies with all the rights which the common law affords, and one of them is a right to wholesome air. Unless the defendant shows a prescriptive right to carry on his business in the particular place, the plaintiff is entitled to judgment." And in Crump v. Lambert, L. R., 3 Equity Cases 409: "Whether one," says Lord Romilly, "comes to the nuisance or the nuisance comes to him, he still retains his right to have the air that passes over his land pure and unpolluted. . . ." Judgment affirmed.1

The plaintiff's intestate assaulted the defendant, and the latter while dazed and unconscious from the blow, shot and killed the former, but not in necessary self-defence. Is he liable? (1897, Jenkins v. Hankins, 98 Tenn. 545, 41 S. W. 1028.)

The plaintiff, a member of a theatrical troupe, left the defendant's passenger car, and rode in the show car. While there he was injured by defendant's fault, though he would not have been injured had he remained in the passenger Is the defendant liable? (1893, Blake v. Burlington C. R. & N. R. Co., 89 Ia. 8.)

car.

The plaintiff with her husband and child were crossing the defendant's bridge. The child fell over into the water, through a defective railing. The husband jumped in to save him and was drowned. Has the plaintiff an action for the husband's death? (1892, Gibney v. State, 137 N. Y. 1, 33 N. E. 142.)

The plaintiff was asleep in the defendant's drinking-saloon. Other persons there had so incumbered the place, and the cook, to make it disagreeable for them, had poured alcohol on their feet and set it afire; the plaintiff had seen this and had joined in the laughter at their expense. When he fell asleep, the cook did the same to him, and he was severely burned. Has he an action? (1903, Curran v. Olsen, 88. Minn. 307, 92 N. W. 1124.)

The plaintiff was working in a gang at the defendant's steel foundry. As the metal was to be poured, a hole in the vat appeared. To prevent the bursting of the vat upon the gang of workmen, the plaintiff jumped forward and stopped up the hole, but in so doing he was splashed by the molten metal, and lost both eyes. If the defendant was in fault, may the plaintiff recover? (1898, Maryland Steel Co. v. Marney, 88 Md. 482, 42 Atl. 60.)

The plaintiff, hearing a report that the defendant had accused her of stealing, went with a policeman to the defendant's office to find out whether the report was correct. The defendant then said that he did so accuse her. For this statement by the defendant, may the plaintiff recover? (1900, Shinglemayer v. Wright, 124 Mich. 230, 82 N. W. 887.)

The plaintiff ice-company had a switch-track made into its premises from the defendant's road. The defendant's engine, which brought the cars into the premises, was defective and frequently emitted sparks which would set fires. The icecompany knew this, and employed a man to follow the engine and put out the fires so set. A fire so set having done much damage, may the ice-company recover? (1899, Liverpool, L. &. G. Ins. Co. v. Southern Pacific Co., 125 Cal. 434, 58 Pac. 55.)

The plaintiff was a flagman, and was injured when he rushed on the defendant's track to take off a woman who was negligently there and was in peril by the defendant's fault. Is the defendant liable? (1903, Pittsburg C. C. &. St. L. R. Co. v. Lynch, 69 Oh. 123, 68 N. E. 703.)

The plaintiff stood on the front edge of the crowd to watch the passing of an automobile race. If, by the fault of the defendant city the roadway was not properly fenced off for the purpose, has the plaintiff an action for an injury re

ceived by the swerving of one of the cars into the crowd? (1906, Johnson v. New York, 186 N. Y. 139, 78 N. E. 715.)

"If A go into B's house, and remove therefrom very valuable and perishable property, which will be destroyed by exposure to the weather, and deposit the same upon the vacant and uninclosed desert claim of C, then, although B has the privilege to go upon the land of C to recover his property, if he can do so without a breach of the peace, he is under no obligation to do so, although he can with only the expenditure of sixty seconds of time and by a walk of ten yards, pick up the imperilled property, and put it back into the house. Would any Court uphold a verdict of, say, $1,000 damages for the loss of a valuable painting destroyed by storm under such circumstances, although A maliciously removed the picture and exposed it with intent to destroy it ?" (1901, Sweeney v. R. Co., 25 Mont. 543, 65 Pac. 912.)

The plaintiff's factory was alongside the railway track of the defendant. A window had been broken, and was left unrepaired for two or three days. The defendant's engine faultily emitted sparks which entered the window and started a fire. Is the defendant liable? (1898, Wild v. R. Co., 171 Mass. 245, 50 N. E. 533).

The plaintiff was riding in a wagon, and at a railroad crossing by the defendant's fault a collision with the defendant's railroad train seemed inevitably impending. The plaintiff jumped from the wagon, and was hurt. In fact, the collision did not take place, and had the plaintiff remained in the wagon he would not have received any harm. Is the defendant liable? (1894, International Gt. Northern R. Co. v. Neff, 87 Tex. 303, 28 S. W. 283.)

The plaintiff's land was injured by the diversion upon it of the water from a stream; the defendant's dam, built on a third person's land, had caused the diversion. The defendant argued that the plaintiff could have stopped the damage by removing the dam, turning the water to its old channel, and filling up the excavation caused by the diversion, and that therefore the recovery should cover only the cost of so doing, and not the entire loss of crops, land-values, etc. Is this plea sound? (1901, Sweeney v. R. Co., 25 Mont. 543, 65 Pac. 912.)

The defendant's powder house exploded and injured the plaintiff's property. The plaintiff had already consented to the use of her premises by other persons for the storage of powder, so that the district had become virtually a powderstorage district. Is the defendant excused? (1888, Laflin & Rand P. Co. v. Rand, 30 Ill. Ap. 321.)

The plaintiff's building, by license of the defendant railroad, was constructed so as to extend on to the defendant's land. It caught fire by fault of the defendant. Is the defendant liable? (1894, Sherman v. R. Co., 86 Me. 422, 30 Atl. 69.)

The defendant's employees negligently removed a service-cock from a city water-main, so that the water burst loose through an open window into apartments where the plaintiff was caretaker. The plaintiff in attempting to save the property by closing the window was drenched with the water and her clothes were spoiled. Has she an action? (1910, Taylor v. Home Telephone Co. Mich., 128 N. W. 728.)

The defendant's engine approached a crossing with needless noise and without due care as to keeping a lookout. C.'s horses, near the track, were frightened and plunged onto the track. C. was trying to control and remove them, and the plaintiff, another teamster, going to help him control the horses, was injured by the engine. Was this contributory negligence? (1910, Dixon v. N. Y., N. H. & H. R. Co., 207 Mass. 126, 92 N. E. 1030.)

Does a plaintiff by walking upon a sidewalk which he already knows to be defective assume the risk of injury, as matter of law? (1905, Mattoon v. Fuller, 217 Ill. 273, 75 N. E. 387.)

The plaintiff's land, adjacent to the defendant's railway, was covered with