The defendants were indicted with knowingly depositing in their warehouse, which was close to public streets, excessive quantities of a dangerous ignitable and explosive fluid called wood naptha. The assertion was that, as a result, the neighbouring and passing public was in great danger of their lives and property and kept in great alarm and terror: if there were to be a fire in the warehouse, it could not be quenched and would produce disastrous consequences in the neighbourhood. The defendants were convicted.
Held: The indictment was upheld.
It was argued on behalf of the defendants that naptha was not self-inflammatory, that it was maintained with care, that it was not therefore dangerous and that the alarm of the public was not of itself sufficient to prove an indictable offence in nuisance. The fears of mankind, though they might be reasonable ones, would not create a nuisance, and he refused an injunction. The point being made was that the naptha in the warehouse did not represent an actual danger to the public. The argument was rejected.
Lord Campbell CJ said: ‘The law of this country would surely be very defective if life and property could be so exposed to danger by the act of another with impunity. There is no ground for saying that, according to the doctrine contended for by the prosecutor’s counsel, neither brandy nor wine, nor oil, nor any ignitable substance, could be kept in the cellar of a town house without the owner of the house being liable to imprisonment. The substance must be of such a nature and kept in such large quantities, and under such local circumstances, as to create real danger to life and property. The well founded apprehension of danger which would alarm men of steady nerves and reasonable courage, passing through the street in which the house stands, or residing in adjoining houses, is enough to show that something has been done which the law ought to prevent by pronouncing it to be a misdemeanour. Accordingly, to manufacture, or to keep in large quantities, in towns or closely inhabited places, gunpowder (which for this purpose cannot be distinguished from naptha) is by the common law of England a nuisance and an indictable offence. . . it is a question of fact for the jury whether the keeping and depositing, or the manufacturing of such substances, really does create danger to life and property as alleged – and this must be a question of degree, depending on the circumstances of each particular case. No general rule of law can be laid down beyond this, that the substantial allegations in the indictment must be substantially proved. In the present case we think that sufficient, although not necessarily conclusive, evidence was adduced, and that although the Judge would not have been justified in directing a verdict of guilty to be entered without taking the opinion of the jury upon it, he was fully justified in telling the jury (which he appears to have done) that if the depositing and keeping the naptha in the manner described, coupled with its liability to ignition ab extra, created danger to life and property to the degree alleged, they might find a verdict of guilty. Whether the liability to ignition ab extra could properly be taken into consideration by the jury, he reserved for our opinion, and we answer – Yes. The conviction must therefore be affirmed.’
Judges:
Lord Campbell CJ
Citations:
[1856] EngR 30, (1856-1857) Dears and B 209, (1856) 169 ER 979
Links:
Jurisdiction:
England and Wales
Nuisance
Updated: 18 May 2022; Ref: scu.290785