intervened will prevent its successful prosecution. Acquiescence for a considerable period after the railroad company has entered upon its duties will defeat the action to recover possession." A large number of cases were cited by this court in the case referred to, among them the following: Mitchell v. New Orleans etc. R. R. Co., 41 La. Ann. 363, 6 South. 522, in which the court there says: "Surely the defendant's act, in openly entering upon plaintiff's land, with plaintiff's knowledge, and in full view of his domicile, and constructing thereon a most important link in their transcontinental railway, could not subject it to such consequences. But this is not an open question, however, as it has been by us twice considered and decided adversely to plaintiff's contention, and in cases cited in plaintiff's brief": Citing Bourdier v. Morgan's etc. R. R. Co., 35 La. Ann. 949, and St. Julian v. Morgan R. R. Co., 35 La. Ann. 924. In those cases the matter was fully considered, and in the former case it is said: "If the entry was unlawful, the plaintiffs condoned it. They should, at once, and peremptorily, have forbidden the entry of the defendant, if they intended to dispute his right to the roadbed, etc. . . . . The land owner may even by parol waive the right to prepayment as a condition precedent to the entry for construction, but having waived it, he cannot treat the company's possession as unlawful." To the same effect was Indiana etc. R. R. Co. v. Allen, 113 Ind. 581, 15 N. E. 446, Cairo etc. R. R. Co. v. Turner, 31 Ark. 494, 25 Am. Rep. 564, and Pryzbylowicz v. Missouri River R. R. Co., 17 Fed. 492. A railroad is, in a sense, a public highway, and the construction of a railroad ever a strip of land by the consent of the owner of the same, or after condemnation proceedings, as the case may be, is a dedication of the same to a public use, and the operation of the same is in the interest of the public, and cannot be interrupted by an action to recover possession of any part thereof in the interest of a private party. The appeal from the judgment not being before us, 'we cannot order the same to be modified in the particular mentioned. Further, the cross-complaint should be amended by asking 346 compensation for the land taken and damages caused thereby, in case the plaintiff fails to perform the conditions under which possession was taken, instead of a recovery of the possession thereof. The only way left to correct the error therefore, is to reverse the order denying a new trial and re mand the cause, with directions to the court blow to grant a new trial, and allow the parties to amend their pleadings so as to conform to the rule herein expressed, and it is so ordered. Beatty, C. J., and Lorigan, J., concurred. ANGELLOTTI, J., concurring. I concur in the reversal of the order denying the motion for a new trial. Under the decision of this court in Fresno St. R. R. Co. v. Southern Pacific R. R. Co., 135 Cal. 202, 67 Pac. 773, the evidence did not justify the finding, "That the plaintiff has not any right to, or interest or estate in, the said real property, and its possession thereof is without right and is wrongful." McFarland, J., dissented. The Doctrine of the Principal Case is supported by perhaps the weight of authority: See Hendrix v. Southern Ry. Co., 130 Ala. 205, 89 Am. St. Rep. 27, 30 South. 596; Southern Ry. Co. v. Hood, 126 Ala. 312, 28 South. 662, 85 Am. St. Rep. 32, and cases cited in the cross-reference note thereto. But there are decisions asserting that ejectment against a railway to recover land on which it has placed its track, without first acquiring a right of way, may be maintained by the land owner. See Illinois Cent. R. R. Co. v. Hoskins 80 Miss. 730, 92 Am. St. Rep. 12, 32 South. 150; Daniels v. Chicago etc. R. R. Co., 35 Iowa, 129, 14 Am. Rep. 490; Terre Haute etc. R. R. Co. v. Rodel, 89 Ind. 128, 46 Am. Rep. 161. KLEEBAUER v. WESTERN FUSE AND EXPLOSIVES COMPANY. [138 Cal. 497, 71 Pac. 617.] EXPLOSIVES.-In an Action for Damages to a Neighboring House from an explosion of gunpowder, an instruction is erroneous which makes no distinction between a case of the use and the manufacture of the explosive, nor any modification of the liability where a secluded situation is sought in the first instance and thereafter others are attracted to the locality; and which makes the defendant liable notwithstanding the greatest care, and the fact that the explosion is caused by an agency beyond his control. (p. 66.) NUISANCE-Explosives as.-The storage of gunpowder for use in manufacturing fuses does not constitute a nuisance per se. (p. 67.) EXPLOSIVES-Liability for Damages.-If a person stores gunpowder for use in manufacturing fuses, and it does not appear that when he commenced business he did not locate in a proper place remote from residences, nor that he did not thereafter carry on his business with the utmost care, he is not liable for injuries to a neighboring house from an explosion resulting from a cause beyond his control. (p. 69.) Wright & Lukens, for the appellant. Reddy, Campbell & Metson, for the respondents. 498 VAN DYKE, J. This is an action for damages. It is alleged in the complaint that defendant was at the time, and prior to the nineteenth day of July, 1898, engaged in manufacturing and storing powder, dynamite, nitroglycerin, and other high explosives and fuses, on its premises near Melrose, in Alameda county, and that, by reason of the negligence and carelessness of the defendant, a large quantity of fuse and explosives belonging to it, and under its control, on said day exploded with great violence, whereby plaintiffs' house was injured and damaged to the extent of four hundred dollars, for which amount damages are claimed. The answer denies that the defendant was engaged in the manufacture or storage of powder, dynamite, nitroglycerin, or other high explosives, but admits that it was the owner of and operating a factory for the manufacture of fuse on its premises; and denies that, by reason of the premises mentioned in the plaintiffs' complaint, 499 or by reason of any negligence or carelessness on the part of the defendant, plaintiffs have been, or ever were, damaged in any sum whatever. The action was tried in the superior court of San Francisco, before a jury, and resulted in a judgment for the plaintiff, from which and an order denying defendant's motion for a new trial an appeal was taken. There seems to be not much conflict in reference to the facts of the case. In July, 1898, at the time of the explosion, and for over ten years prior thereto, defendant corporation was carrying on the business of manufacturing fuse near San Leandro Bay, in the county of Alameda, near a station called Melrose. There were other fuse works there besides that of the defendant, and there were in the vicinity dwelling-houses scattered here and there about the manufactory. The place was platted in streets, but there were only two roads or ways through the vicinity. One was called High street, the other Clark street. In the testimony of witness Clark, a civil engineer, he says: "High street is open and macadamized. Clark street is a road that is in pretty fair condition only-that is, simply open-and a wagon might go through it by picking out the better places." It is outside of the limits of both Oakland and Alameda, and within the township of Brooklyn. The company's grounds contained about an acre and and a half. A tight board fence, six feet and over in height in the lowest place, and six feet seven inches in the highest, with a run of barbed wire on top, inclosed the buildings in which the company carried on its operations. One of these buildings was a powder-magazine. This was a brick structure, about fourteen by sixteen feet, and eight or ten feet high, covered with metal, and the floor lined with thick linoleum, and was situated in the corner of the inclosure, and in another corner was the residence of the superintendent. The powder used in the manufacture of fuse is ordinary black powder, kept in round metal cans. The company did not manufacture the powder, but it was brought on the premises and stored in the magazine, to be used as required in the manufacture of fuse. The gunpowder was taken from the magazine to a loft or upper story of another small building, and thence poured into small tin hoppers, funnel-shaped, with an orifice leading through the floor to the room below. Each 500 orifice has a thread drawn through it, and as the thread which thus passes through the gunpowder in the hopper leaves the funnel in the room below, it is wound with other threads and twisted so that it becomes the center thread of the twist. Afterward this twist is covered with tape and becomes a ropelike fuse, used for the purpose of conveying a spark from a distance to the explosive in blasting operations. The superintendent of the company, in his testimony, says that the works were located near the slough running into San Leandro Bay, and that within one hundred feet of the works it was all marshy to San Leandro Bay. In the vicinity of the fuse works there were fields under cultivation. The plaintiffs went there and built their house over five years ago after the defendant company had been in operation, and it does not appear from the evidence whether, at the time the defendant located there and commenced its business, there were any residences or other buildings in the vicinity, but at the time of the explosion there was quite a number of buildings in the neighborhood. About 3 o'clock in the afternoon of the 18th of July, 1898, a quarrel arose between a Chinaman named Quong Ng Chong and another Chinaman within the inclosure in which the company's works were situated. Quong Ng Chong had for many years been employed by the company. His business was to go to the magazine and bring the powder over to the spinningroom whenever it was necessary. He was a man of good reputa tion for peace and quiet. The Chinaman with whom he quarreled was a vegetable dealer who sold vegetables to the men employed in the fuse works. Quong Ng Chong suddenly killed him, and after perpetrating the murder, taking advantage of the excitement caused, he fled into the magazine. He then piled in the doorway of the magazine a number of the metal cans in which the gunpowder was kept, and by that means filled up the doorway of the magazine while he remained inside. He then announced that if any sheriff, policeman, or other person attempted to arrest or take him he would set fire to the gunpowder. The sheriff of Alameda county and several deputies promptly arrived at the fuse works to arrest the murderer. The afternoon was spent in vain endeavors to induce the Chinaman to come out of the magazine, but he had a pistol, and declared he had 501 matches, and he could not be induced to leave. Late in the evening the employés of the company left the place in charge of the sheriff and several armed deputy sheriffs. They remained on guard during the night. About 5 o'clock next morning, in consequence of an attempt then made to arrest him, the Chinaman carried out his threat and set fire to the gunpowder. The magazine exploded, destroying defendant's factory, killing some of the deputy sheriffs, and injuring the dwelling-house of the plaintiff in this action. In submitting the cause to the jury the court gave the following instruction, among others: "A magazine of powder so situated that, in case of explosion from any cause, it is liable to injure the persons and the dwellings of persons living in the vicinity, is a nuisance; and, therefore, if the jury believe from the evidence that the defendant corporation maintained at the time mentioned in the complaint, at the town or village, or place called Melrose, a magazine, and kept stored therein large quantities of gunpowder, which, in case of explosion, was liable to injure the persons, dwellings, or other property of the residents of the said town, or village, or place called Melrose, your verdict should be for the plaintiffs. Although the jury may believe from the evidence that powder in the magazine in question was exploded by an agency beyond the control of the defendant corporation, still this would not exempt the defendant corporation from liability, provided the jury believe from the evidence that said magazine was maintained by such defendant corporation in such place that, in case of an explosion, it was liable to injure, damage, or destroy the persons or prop Am. St. Rep., Vol. 94-5 |