text:
    THE STATE ex rel. J. S. HOPKINS et al., Appellants, v. EXCELSIOR POWDER MANUFACTURING COMPANY.
    Division Two,
    June 23, 1914.
    1. NUISANCE: Negligence: Powder Factory and Magazine. A powder magazine, as to all property and residents in such proximity to it that they are subject to danger from its explosion, is a nuisance regardless of the question as to negligence in the manner of keeping it.
    2. PUBLIC NUISANCE: Powder Factory: Licensed and Lawful Business. The facts that defendant powder company is licensed ' to do business in the State, that it is conducting a lawful business, and that its products are useful and necessary for the public welfare and defense, do not prevent its factory and magazine from being a nuisance if so situated as to be dangerous to persons and property.
    d. -:--: Dangerous Area: Evidence. A powder magazine is a public nuisance when so situated as to be dangerous to persons and property over an area which includes public roads, two villages with postoffices, a railroad over which run numerous trains, and a public schoolhouse — an entire community, in short.
    4.-: -: Suit to Abate: Prosecuted by State: Legal Services Provided by Relators. Where the petition in a suit to abate.a public nuisance shows that the suit was brought by the Attorney-General, and the evidence shows that he satisfied himself as to the propriety of the suit, signed the petition which had been prepared by counsel for the relators, and authorized it to be filed, the suit is prosecuted by the State. The fact that the legal services in the trial court and on appeal were rendered by counsel employed and paid by the relators does not affect the question.
    5.-: -: -: Injunction: Evidence: Damage to Defendant. Where it is shown that large quantities of powder were kept in defendant’s powder factory and magazine, that an explosion of the “glaze” damaged a passenger train and injured the people in it; that the effect of the explosion upon a neighboring schoolhouse was such as would have severely injured the pupils if it had occurred during school hours; that large metal shafts were thrown great distances across a county highway and over the railroad, and a plate glass window was broken in a village four miles away; that windows, doors, plaster, flues and roofs were damaged within a radius of two or three miles, and that valuable real estate within that radius had been greatly lessened in value, an injunction abating the factory and magazine as a public nuisance is granted, although the defendant’s loss in business and equipment will be great— leave being given to the defendant to make a showing, if it sees fit, as to whether it can operate its mill or maintain powder or dynamite magazines on its grounds in such a way that the amount of explosive in any one place at one time will not be dangerous to persons or property outside of defendant’s grounds and so that the explosive in one place will not be in danger of explosion from that in any other place, the decree to be modified upon such showing.
    6.-: -: -: Laches. Where in an action by the State upon relation to abate a powder factory as a public nuisance there is no showing that the community knew for what purpose the plant was built, and it appears that after the first damaging explosion occurred in November, 1908, the relators in the following January applied to the Attorney-General with their petition, and that petition was filed within a week and before the plant resumed operations, it is held that the suit is not barred by laches. Moreover, laches will not be imputed to the State, and it has been held that as against the State one cannot claim a right by prescription to maintain a public nuisance.
    Appeal from Jackson Circuit Court. — Ron. Thomas J. Seehorn, Judge.
    Reversed and remanded (with directions).

      Elliott W. Major, Attorney-General, J. McD. Trimble, John A. Eaton and Dudley W. Eaton for appellant.
    (1) A powder mill, such as the defendant has, with its immense magazine for the storage of powder and its dynamite magazine, located as this is near a trunk line railroad, near public highways, near a public school, and in the midst of a populous community with its hotels, churches, stores, postoffices, shops and private residences, is a public nuisance. Joyce, Law of Nuisances, secs. 384, 385, 99; Garrett on Nuisances (3 Ed.), p. 43; Wood on Nuisances (3 Ed.), p. 6; Wilson v. Powder Mfg. Co., 40 W. Ya. 413; Cheatem v. Shearon, 1 Swan (Tenn.), 213, 55 Am. Dec. 734; Cumming v. Stevenson, 76 Tex. 644; Kleebauer v. Western Fuse, etc., Co., 69 Pac. 246; Appeal of Wier, 74 Pa. St. 230; Heeg v. Licht, 84 N. Y. 579; Rhodes v. Dunbar, 57 Pa. St. 274, 98 Am. Dec. 221; Hackney v. State, 8 Ind. 495; Burlington v: Stockwell, 5 Kan. App. 569; Kissel v. Lewis, 156 Ind. 233; Moses v. State, 58 Ind. 185; Ross v. Butler, 19 N. J. Eq. 294; Glycerine Co. v. Woolen Mfg. Co., 60 Ohio St. 560; Schnitzer v. Powder Mfg. Co., 160 S. W. 282. (2) It is no answer to the charge of maintaining a nuisance that the business was carried on in a convenient place, when it is in fact a nuisance. Joyce, Law of Nuisances, sec. 95; Powder Co. v. Tearney, 19 Am. St. 34; Fertilizer Co. v. Spangler, 86 Md. 562. (3.) The trial court erred in undertaking to “balance conveniences” or estimate the difference between the injuries which the citizens of Missouri had sustained and the loss which the defendant would sustain from having its powder plant declared a public nuisance. No one has the right to create a nuisance by erecting such dangerous works, and then say he has expended large sums of money in so doing and that the neighboring property is of little value, or that he has erected such a big and expensive nuisance that it will have to be suffered. Joyce, Law of Nuisances, sec. 483; 21 Am. & Eng. Ency. Law (2 Ed.), 689; United States v. Luce, 141 Fed. 416; Fertilizer Co. v. Malone, 25 Am. St. 595; Evans v. Fertilizer Co., 160 Pa. St. 209; Wente v. Fuel Co., 232 111. 526; Seacord v. People, 121 111. 623; State v. Easter, 35 Iowa, 221; Sullivan v. Steel Co., 57 Atl. 1065; Evans v. Fertilizing Co., 28 Atl. 709; Preserve Co. v. Beeman, 60 S. W. 849; Hough’s Appeal, 48 Am. Rep. 193; 29 Cyc. 1161. (4) It is a uniform rule that a public nuisance may be abated at the suit of the Attornev-Gfeneral or the County Attorney, and such suit may be prosecuted either without or upon the relation of persons especially injured by the nuisance. Wood on Nuisances, p. 938, secs. 819-820; State ex rel. v. Vandalia, 119 Mo. App. 406; State ex rel. v. Lamb, 237 Mo. 437; Smith v. McDonnell, 35 N. E. 141; People v. Lumber Co., 48 Pa. 374.

      Kinealy & Kinealy and E. Wright Taylor for respondent.
    (1) Defendant’s plant, being a lawful manufacturing establishment for the operation of which it has been duly licensed by the State, is not and cannot be a nuisance per se. Realty & Imp. Co. v. Crockett, 158 Mo. App. 581; Loth v. Theatre Co., 197 Mo. 355; Randle v. Railroad, 65 Mo. 333; 29 Cyc. 1153, 1159-60; Joyce on Nuisances, sec. 16, p. 26; Payne v. Railway, 112 Mo. 17. And the mere fact that the plant is a powder factory does not make it an exception to the rule. Kinney v. Koopman, 116 Ala. 310; Dumesnil v. Dupont, 18 B. Mon. 809. (2) The plaintiffs wholly failed to make out a case of public nuisance against defendant’s manufacturing plant. To prove that it is such it would be necessary for the evidence to show that by reason of its location and character it violated the rights of the public at large by subjecting them to a danger of such kind that: There was a reasonable anticipation of injury. Webb’s Pollock on Torts, p. 45; Lawless v. Laclede L. Co., 72 Mo. App. 683; Dumesnil v. Dupont, 18 B. Mon. 800; Dilworth’s Appeal, 91 Pa. St. 247; Whitfield v. Carrollton, 50 Mo. App. 104; Harper v. Oil Co., 78 Mo. App. 345; Dock Co. v. Libby, 45 N. Y. 449; United States v. Reeves, 38 Fed. 404; United States v. Wilson, 28 Fed. 707; Strode v. Box Co., 124 Mo. App. 520; Meifert.v. Sand Co., 124 Mo. App. 496; Cleveland v. Gras Light Co., 20 N. J. Eq. 207. And that the injury to be apprehended was real and substantial in charatcer, and such as to effect, physically, men of ordinary sensibilities and simple tastes. 29 Cyc. 1154, 1190-1; Joyce on Nuisances, sec. 88, p. 136; 1 Wood on Nuisances, pp. 4, 104; Kirchgraber v. Lloyd, 59 Mo. App. 62; Harper v. Oil Co., 78 Mo. App. 345. (3) The one explosion, that of the glaze, which exhibited an effect outside of the defendant’s premises, was not sufficient to show that danger outside of the premises was to be anticipated. Beasley v. Transfer Co., 148 Mo. 420; Strode v. Box Co., 124 Mo. App. 523. (4) If it were the fact that defendant’s plant had a tendency to decrease the value of surrounding property that would not be sufficient to constitute it a nuisance. 1 Spelling on Extra. Rem., sec. 396, p. 350; Parker v. Lake, C. & W. Co., 2 Black. 545. (5) Even-where a nuisance is shown to exist a court of equity will not interfere by injunction unless: The damage or injury is actual, certain and substantial. 29 Cyc. 1226; Joyce on Nuisances, secs. 21, 22; 1 High on Injunctions, sec. 774, pp. 738-9; 2 Joyce on Injunctions, sec. 1079, p. 1558, note 193; Canal Co. v. Canal Co., 177 U. S. 296. And is continuous or constantly recurring. 1 Spelling, Extra. Rem., sec. 377, p. 335; Scheurich v. Light Co., 109 Mo. App. 424;. Akers v. March, 19 App. D. C. 43; Hagge v. Railway, 104 Fed. 391; Tuttle v. Church, 53 Fed. 422. And is irreparable in character so that it cannot be compensated for by damages. 29 Cyc. 1223-4; 1 High on Injunctions, secs. 740, 817; Atty. Gen. v. Gas Con. Co., 3 Deg. M. & G. 320; Joyce on Nuisances, sec. 415, p. 592; Mayor v. Canal Co., 12 Pet. (H. S.) 98; Wood v. Sutcliffe, 8 Eng. Law & Eq. 217; Welton v. Martin, 7 Mo. 310; Bailey v. Culver, 84 Mo. 540. And the evidence makes out a strong case of urgent or pressing necessity, which is clear, manifest and strongly established. 29 Cyc. 1221, 1225; 2 Story’s Eq. Jur., p. 296, sec. 924a; Joyce on Nuisances, sec. 88, p. 136; Railroad v. Ward, 67 U. S. 485; Parker v. Lake C. & W. Co., 2 Black. 545; Missouri v. Illinois, 180 U. S. 249; Sellers v. Parvis & Williams Co., 30 Fed. 164; Arnold v. Klepper, 24 Mo. 277; Tanner v. Dallbrunn, 77 Mo. App. 262; Atty. Gen. v. Gas Con. Co., 3 Deg. M. & G. 325. (6) An injunction is not a writ of right but is granted or refused in the discretion of the court in view of all the facts and circumstances shown by the evidence and taking .into consideration every phase of the case and including the relative advantages and disadvantages to the parties concerned. And the rules applicable to public and private nuisances are the same. 5 Pomeroy’s Eq. Jur., sec. 542; Atty. Gen. v. Gas Con. Co., 8 Deg. M. & G. 320; 2 Story, Eq. Jur., sec. 959a; Good v. Fire Brick Co., 224 Pa. St. 503; 1 High on Inj., secs. 740, 776; Equitable L. Ins. Co. v. Brown, 213 H. S. 25; 2 Joyce on Injunctions, sec. 1067; Safe Dep. Bnk. v. Kenneth Est., 101 Mo. App. 395; Bailey v. Culver, 84 Mo. 540; Tanner v. Lindell Ry. Co., 180 Mo. 18; Baker v. McDaniel, 178 Mo. 474. (7) While this court must necessarily pass upon the evidence for itself yet deference will be paid to the findings of the chancellor, especially when backed by the opinion of four of his associates, all familiar with the locality and the persons concerned. Ancell v. Bridge Co., 223 Mo. 231; Lumber Co. v. Crommer, 202 Mo. 521; Danforth v. Foster, 158 Mo. App. 99; Smith v. Sedalia, 152 Mo. 299. (8) The evidence shows that this suit is not prosecuted by the State of Missouri or its Attorney-General but by individuals in the name of the State. The Attorney-General has no power to permit this to be done. State ex rel. v. Vandalia, 119 Mo. App. 419; 2 Joyce on Inj., sec. 1079, p. 1557; New Hampshire v. Louisiana, 108 U. S. 76; Poindexter v. Greenhow, 114 U. S. 270. (9) Even had there been anything of substance in plaintiffs’ complaint their laches would have barred them of any relief. New York v. Pine, 185 U. S. 98; Galliher v. Caldwell, 145 U. S. 368; Stevenson v. Smith, 189 Mo. 466; Dexter v. McDonald, 196 Mo. 403; Pike v. Martindale, 91 Mo. 268.
   ROY, C.

This is a proceeding to abate the defendant’s powder factory, powder magazine and dynamite magazine as a public nuisance, by injunction. The trial court found for the defendant and dismissed the bill. The petition is broad enough to cover any theory of the case shown by the evidence and prays that defendant be enjoined “from manufacturing or storing any powder, dynamite or other high explosives in any of its said buildings or on its said lands, or any part thereof, or on any other lands in the neighborhood in which the same are situated, and the plaintiff further prays for any and all other orders, judgments, decrees and relief to which in justice and in equity it may be deemed to be entitled, and for the costs of this suit."

The answer states that defendant was on August 3, 1905, licensed as a foreign corporation to do business in this State as a manufacturer of, and dealer in, blasting and sporting powders and high explosives, and that such license is still in effect.

That the location of defendant’s plant was selected by it as the best that could be had in the western part of Missouri, the eastern part of Kansas and the northwestern part of Arkansas. That the industries of that territory are such as to require a large amount of blasting powder, the manufacture of which is alleged to be necessary for the public welfare and defense. That there is no other blasting powder factory in Missouri. That the nearest railroad had constructed switches to defendant’s plant for commercial purposes; and that defendant’s buildings are at such distances from each other as to prevent one from being exploded by another, and that such buildings are located around the sides of a hill covered with timber, and that the danger of explosion in any of the buildings is exceedingly slight. That there is no danger from explosion except on defendant’s ground, and that it keeps on hand only so much powder and dynamite as is necessary to supply the trade. That defendant manufactures only black blasting powder, which is the least dangerous explosive manufactured. That it employs a large number of men, and conducts its plant with care and caution, in accordance with the most approved methods. That the defendant’s plant is not a nuisance or source of danger, but is a lawful work under said license. That defendant’s plant represents an outlay of over a hundred thousand dollars, and that defendant has built up a business worth over $250,000, all of which would be destroyed by an injunction, thereby depriving it of its property without due process of law, and would take or damage said property without compensation, contrary to the State and National Constitutions, specifying the sections. It alleges that the suit is not prosecuted in the name of the real parties in interest, and states that those real parties are the relators named in the petition. The reply denied “each and every allegation of new and affirmative matter set up and contained in the answer.”

Mr. G-orman, president of the defendant company, after investigating the question as to freight rates, the demand for explosives and a suitable site, selected fifty-five acres belonging to Peter Johnson, one of the relators, and his brother, as the best location for such a plant; and, through Mr. Sloan, a real estate man, purchased it at $100 an acre, sometime in the summer of 1904. Mr. Johnson testified that at the time he sold the land he asked the agent who came to purchase it what it was being bought for and that he received the answer, “That is none of your business as long as you get the money.” Mr. Sloan was a witness for defendant and did not deny the statement. Mr. Johnson still owns about a hundred acres adjoining the railroad west of defendant’s land. The land thus purchased is south of Kansas City, about two miles from the terminus of the street car tracks. It is half a mile long north and south, bounded west by the “Frisco” railroad.

On September 6, 1904, the defendant contracted with the railroad company for the construction of suitable switch tracks on defendant’s grounds, and agreed to make certain stated payments to reimburse the railroad company for- the expense of such construction. That contract contained the following: “Provided, however, that in case the Powder Company is prevented, by fire, accident, or injunction, from making shipments to and from its said plant over said tracks at any time within said period of two years from the time of commencement of operation of said powder plant, then said period during which said refund is to be made shall be extended for a term equal to the time said Powder Company is prevented from making shipments as aforesaid.”

The mills and magazines of the defendant by their positions form a line something like the letter “S” with the top to the north. Beginning at the northeast there is a row of four “wheel mills” running west by south about two hundred feet apart. In them the materials for making powder are mixed and ground together. Three hundred feet south by east of the most westerly wheel mill is the press, where the product of the wheel mills is pressed' into cakes. Three hundred feet south by west of the press is the “corning mill” where the calces are ground into powder. About the same distance south by east of the corning mill is the glaze mill or “glaze,” where the powder is finished. About three hundred feet east by south of the glaze is the packing house where the powder is packed in twenty-five pound metal cans. The same distance south by west of the packing house is the powder magazine, where it is stored by the side of the railroad switch track ready for shipment. Four hundred feet southwest of the powder magazine, and a hundred and fifty feet east of the railroad, is the dynamite magazine. The offices, powder house, warehouses and other buildings used in connection with them are in the northwest corner of defendant’s land. A tramway connects all those buildings except the dynamite magazine. All the product of the corning mill during the day is placed in cylinders or barrels in the glaze. Those barrels turn on solid metal shafts four and a half inches in diameter and eight or ten feet long. They turn from six o’clock p. m. until as late as six, ten or eleven o’clock the next morning. The friction thus caused polishes the powder and produces heat which dries it.

The Kansas City Southern Railroad Company runs its trains over the Frisco track, and altogether there are about fifteen regular trains over it a day, eight of them being passenger trains. A public road known as the Santa Fe Trail, not extensively traveled, nor in very goód repair, touches the northwest corner of defendant’s land, being the southern entrance and exit to and from Holmes Park, a village a little over a quarter of a mile from defendant’s glaze. Prior to the opening of defendant’s plant, Holmes Park contained about six residences, a public schoolhouse, a postoffice and a “flag station” on the railroad. Since then the number of residences has about doubled, and there is a station agent, a boarding house and blacksmith shop. Over a mile and a quarter southeast of defendant’s glaze is the village of Hickman’s Mills, with a store, postoffice, church and several residences. A rock road runs east and west a quarter of a mile north of defendant’s land. The evidence shows that the foot of the runway at the glaze is thirty-six and a half feet above the railroad which is four hundred and fifty feet distant. And from the foot of that runway to the “top of the hill” eastward is forty-three and a. half feet. The photographs in evidence show an undulating landscape on and around defendant’s land, but do not show precipitous hills or bluffs. There is considerable forest growth at intervals on and around defendant’s land. The land around the powder works is used for farming, pasturage and dairying, the farms averaging ninety acres or more in size. The wheel mills, press, glaze, corning mill, packing house and powder magazine are of cheap balloon construction, made of light framing -with iron siding and roofs. But the glaze and wheel mills have expensive concrete floors, and the machinery of the glaze is expensize.

The defendant began manufacturing in May, 1905. The evidence is silent on the subject as to what anyone except the defendant knew of the purpose of the defendant to manufacture or deal in explosives prior to the beginning of manufacturing. Prior to November 12, 1908, there were six explosions of wheel mills and one of the coming mill. Owing to the comparatively small amount of powder in those mills at any one time, and to its loose, unconfined condition, those explosions did no substantial damage outside of defendant’s grounds. On the last-mentioned date, about six o’clock a. m., just as a passenger train was going by defendant’s grounds, the glaze exploded. It then contained eight barrels or cylinders, each containing about a hundred kegs of powder, in all twenty thousand pounds. The damage done to the train and passengers was shown by the testimony 'of the conductor as follows:

“Some of our lights were all blown out- — the window lights — and I tried to get outside by way of the door, but the door was twisted, so I couldn’t open it then. Then I crawled throug’h the vestibule window and walked along the side of the train to the head coach, and then I went in and lit my lantern. We had no lantern lights lit at that time, or any other lights in the train. Then I lit my light and walked through the train. I found the passengers cut with fine glass, more or less; all of them, cut with fine glass. I walked right back through the Pullman, and found that a berth was blown down.
“Q. (Interrupting.) What do you mean by that —an upper berth in the Pullman? A. Yes, sir; it was blown loose from the wall, and fell on some of the passengers. One lady passenger was pinned down and couldn’t get loose. That was about all the serious damage. Then I walked to the rear end, and about all the damage was the. glass blown out of the windows, and this Pullman blown down; but there was no serious damage there. Then I walked back to the head part of the train and found the passengers more or less cut with glass, women and children — but there were none of them, I thought at the time, seriously hurt. There was one lady who had glass in her eye, I never could tell how much; and our porter was cut and also one of the brakeman. I was hurt in the stomach myself. I wasn’t blown up, and the force came down. ’ ’

A plate glass was broken in a store window at Grandview, four miles away. Some of those large metal shafts were thrown across the road and across the railroad onto an adjoining farm. One of them was thrown more than a quarter of a mile. Fragments of material, metal and wood were thrown on adjoining farms, a large piece of iron falling on a house seventeen hundred feet away, breaking two rafters. Another fell a quarter of a mile still further away. The explosion cracked a cistern at a house in Hickman’s Mills. It broke windows, doors, plastering, flues, being more or less violent according to distance, within a radius of several miles. The windows in the school house at Holmes Park were shattered in such a way as would have been dangerous to the pupils had school been in session,'and the flue was shattered so that it was rebuilt.

The defendant put in evidence a list of thirty-eight persons to whom it paid small sums for damages caused by the explosion, amounting to $348.07. Mr. L. W. Holmes, a merchant of Holmes Park, was a witness for the defendant. He received $34.59 damages to windows and plastering in his store and residence. Mr. Harrington, the blacksmith of Holmes' Park, was also a witness for defendant. He received $15.85 for damages. Mr. G-. W. Kemper, another such witness, got $14.35 for damages to a house in Holmes Park.

By the explosion of the glaze the corning mill and packhouse were burned; and the press and powder magazine were damaged, the roof of the latter falling upon the kegs of powder. The list of persons who were paid damages contained the names of persons living in all directions from the powder works.

The evidence tends strongly to show that the attendance at the Holmes Park school appreciably diminished after the resumption of the powder mill in February after the explosion.

The average amount on hand daily in the powder magazine during the year 1908 was 16,517 kegs. In 1909 it was 11,264 kegs. The dynamite magazine was built of double walls of boards, fifteen inches apart, filled between with cinders, and the dynamite was stored in it a car load of 20,000 pounds at a time.

About the time of that explosion the defendant purchased forty acres of land adjoining the north half of its other tract on the east for $6000. After the explosion the number of barrels in the glaze was reduced from eight to six, thus reducing its capacity from 20,000 to 15,000 pounds. Mr. Olin, a powder expert, witness for defendant, testified that the comparative force of the explosion of different quantities of powder is in proportion to the square roots of the quantities.

Mr. Sloan, the real estate man of Kansas City who acted for the defendant in purchasing the land in 1904 for the plant, testified on cross-examination that in the last few years lands south of Kansas City extending beyond defendant’s plant had increased in value rapidly, the growth of the city and street car extension being in that direction. He further testified as follows:

“Q. In your judgment as a real estate man, Mr. Sloan, would you consider property in that neighborhood and vicinity as being desirable as a place for investors to build rural homes? A. In my judgment, a powder mill would not be an attraction.
“Q. It would be a detraction rather than an attraction? A. Close to it, it would.
“Q. Well, take within a distance of two miles. What would you say about that? A. Well, I would be willing myself to go within two miles of the powder mill without any apprehension of fear.
“Q. Suppose it is in evidence here that this explosion affected property two miles, and three miles, and four miles, and four and one-half miles from this powder mill. How would you answer my question then about it affecting property within two miles? A. Well, I would answer it then this way: If you can show that it affected property twenty miles, or fifty miles, then it wouldn’t be desirable. If you show that the explosion a hundred miles, then it wouldn’t be desirable.
“Q. It would affect its market value, wouldn’t it? A. Certainly.”

The opinion of the witnesses as to the value of the lands around the powder mill, on the basis of what it would be without the presence of the powder plant, placed the land at from $150 to $400 an acre, varying according to the character of the land and the opinion of the witnesses. During the cross-examination of Mr. T. T. Moore, a witness for defendant, the following occurred: “Q. What do you say as to the effect of the location of this powder mill there — as to the property in that vicinity? A. It certainly damaged it. Q. How does it affect its sale or market value? A. I should judge it affected it, according to the proximity to the powder mill. Q. What is its effect on the property situated nearest to the powder mill? How does it affect that, as compared with those farthest away? A. I think it almost destroyed the value of those right close to it.” The evidence shows that real estate sales, except in Holmes Park, have practically ceased in that vicinity.

The trial judge, in a colloquy at the time of making his decision, said, “Well, the evidence shows that the property around there would be doubled in value if this industry was destroyed.”

Three of defendant’s witnesses, expert powder men, including Mr. Gorman, the president of the defendant company, testified that powder is dangerous. One of them, Mr. Olin, testified as follows: “Q. Do you know of any way to operate a powder mill without the hazard of explosion? A. No, sir. Q. It is incident to, and belongs to the powder business — doesn’t it? A. It is necessarily a feature in the process of manufacture, so far as determined yet by anybody. Q. I believe you stated that ninety-nine per cent of the accidents by powder mill explosions were unavoidable and could not be foreseen? A. I should have qualified that, by my own experience.”

During the cross-examination of Mr. Gorman, the following occurred: “Q. Because powder is dangerous — you admit that, do you? A. Yes, I admit that, too. Q. When is it the most dangerous — at the time the mill is running or not? A. I don’t know any particular time.” He also testified that forty per cent grade dynamite is twenty-eight times as powerful as blasting powder.

The defendant put in evidence the following statement of its business:

INVESTMENT.

Duplicate machine and supplies ............$ 1,680.89

Machinery, building, etc................... 119,413.72

Horses and vehicles ...................... 858.75

Land ..................................... 11,500.00

$133,453.36 Plant (as per schedule above)..............

22,789.51 Betterments (repairs) ....................

55,351.82 Advertising and incidental expense (salaries, rent, stationery, etc.) ............

27,333.31 Discount on bank loans, other interest items, reconstruction amounts, etc.............

32,028.80 Interest on original investment, $133,453.36, four years at six per cent per annum____

275,000.00 Good will .................................

$545,956.80

Mr. Gorman testified that the forced removal of the plant would entirely wipe out the good will of defendant’s business.

Defendant put in evidence a statement of the amounts annually expended by it in Kansas City as follows:

MONEY EXPENDED IN KANSAS CITY.

Payroll' per annum ....................................$ 30,000.00

Charcoal .............................................. 7,000.00

Coal .................•................................. 7,000,00

Kegs ................................................. 27.000.00

Small parts machinery ................................ 5,000.00

Rent, incidentals, stationery, etc....................... 5,000.00

Inbound freight per annum ............................ 30,000.00

$111,000.00

Also a statement of its contract liabilities for future supplies as follows:

CONTRACT LIABILITIES.

One hundred and fifty tons per month of sodium nitrate contracted for last six months, 1909, 900 tons, 2,016,000 lbs., at $2.50 per hundred . ........................$ 50,400.00

Fifty tons per month of sodium nitrate contracted for year 1910, 600 tons, 1,344,000 lbs., at $2.50 per 100.... 33,600.00

One hundred and fifty tons sulphur contracted for last six months 1909, 336,000 lbs., at $1.50 per 100...... 5,040.00

Seven hundred and fifty tons charcoal contracted for to be delivered between July, 1909, and December, 1910, 1,500,000 lbs., at 60 cents per hundred ............ 9,000.00

Two hundred and fifty thousand kegs contracted for to be delivered between July, 1909, and May, 1910........ 27,500.00

$125,540.00

The evidence for the defendant showed that the closing of its business at the present location would result in the loss of seventy-five or eighty per cent of the value of its machinery and apparatus.

The deposition of Elliott W. Major, who was Attorney-General at the date of the institution of the suit, was read, showing that the original petition in the case was presented to him by Mr. J. McD. Trimble, counsel for the relators, on January 15 or 16, 1909, also some affidavits and a plat showing facts bearing on the propriety of such suit. That he took the matter under' advisement for several days, then signed the petition and caused it to he filed. The legal services for plaintiff in the trial court and in this court have been rendered by counsel employed by relators.

I. A powder magazine, as to all property and residents in such proximity to it that they are subject to danger from its explosion, is a nuisance regardless of the question as £0 negligence in the manner of keeping* it.

An anonymous case was decided by Chief Justice Holt in the King’s Bench, in the year 1700, nisi prius, reported in 12 Mod. 342. The defendant was indicted for a nuisance for keeping several barrels of gunpowder in Brentford Town, sometimes two days, sometimes a week, till he could conveniently send them to London. Held, that, though gunpowder be a necessary thing, and for defense of the kingdom, yet if he kept it in such a place as it is dangerous to the inhabitants or passengers, it will be a nuisance. That case does not require that there shall be any negligence in keeping the powder, nor does it make any requirement as to how'many passengers or inhabitants shall be subject to the danger.

In Rex v. Taylor, 2 Str. 1167, the Court of King’s Bench, in 1742, granted an information against the defendant as for a nuisance, on affidavits of his keeping great quantities of gunpowder, to the endangering the church and houses where he lived.

Roger Williams was convicted of keeping four hundred barrels of gunpowder near the town of Bradford. [Rex v. Williams, E. 12 W.]

In People v. Sands, 1 Johns. (N. Y.) 78, decided in 1806, the defendant was indicted for keeping fifty barrels of gunpowder at Brooklyn, near the dwelling houses of divers citizens and near a certain public street. Chief Justice Kent held that it was necessary to show negligence in the manner of keeping the powder; and in speaking of the anonymous case, supra, said: “This case, as far as it is any authority, goes in confirmation of the principle, that the time, place and manner are all important and essential in determining whether a powder-house amounts to a nuisance; but considering the loose manner in which this case is reported, and the book in which it is found, it is not entitled to much, if any, consideration. The case of the King v. Taylor (Str. 1167) was also cited, but it throws no light on the question; it states merely the fact that the Court of King’s Bench granted an information against the defendant, as for a nuisance, for keeping great quantities of gunpowder to the endangering the church and houses where he lived.” He concluded his opinion by saying: ‘ * The fears of mankind will not alone create a nuisance, without the existence of real danger.” In 1844, Myers v. Malcolm, 6 Hill (N. Y.), 292, was decided. About six hundred pounds of powder were kept in the village of Syracuse. The language of the opinion in that case is not clear as to whether negligence was necessary.

In 1816, Crowder v. Tinkler, 19 Ves. 616, was decided in the English Court of Chancery. Plaintiff conducted paper mills and defendants were operating a powder mill. Both mills had existed for fifty-one years. At first defendants ’ corning mill was two hundred and nine yards from the paper mills. Thirty-seven years before the suit was brought, the corning mill exploded, and was rebuilt at the distance of four hundred yards from the paper mills. Just before the suit defendants proceeded to rebuild it on the old site. The court said: “It is conceived that at common law the erection of a coming house of this sort, if attended with danger to the public, would not he a nuisance. To that I do not agree as, though gunpowder is an article of recent origin, the principle of law is, that any subject of modem discovery cannot be used in such a manner as to constitute nuisance merely on the ground that the materials are of modern discovery. The instance has occurred of a conviction upon a prosecution for employing a reservoir of gas in a place where an explosion might he dangerous to the King’s subjects or their property.”

Cheatham v. Sheardon, 1 Swan (Tenn.), 213, decided in 1851, was for damages caused by the explosion of a powder magazine in the town of Nashville, containing five hundred kegs of powder. The court, speaking of the anonymous case above mentioned, said: “Chief Justice Kent refers to this case, as reported in 12 Mod. 342, in the case of the People v. Sands, (1 Johns. 78), and discredits it, because of the loose manner in which it is reported, and the book in which it is found. We understand the case as distinctly asserting that if gunpowder be kept in a place dangerous to the inhabitants it is a nuisance. And Lord Holt’s report of it, entitles it to full weight, as the judgment of one of the ablest common lawyers that ever sat in Westminster Hall.” And it was held that a powder magazine containing a large quantity of powder in a populous place is a nuisance per se.

In 1857, the case of Dumesnil v. Dupont, 18 B. Monroe (57 Ky.), 800, was a proceeding to abate as a nuisance a powder house on the plank road within half a mile of the limits of the city of Louisville, within about three hundred yards of plaintiff’s residence, and but a short distance of his neighbor’s houses. The quantity of powder kept was merely stated to be large. The decision was for the defendant, following People v. Sands and repudiating Cheatham v. Shearon. Concerning the latter case the court said: “This decision cannot be regarded as authority in the case before us for several reasons: First, because it was rendered in an action on the case brought by the owner of certain houses in Nashville, to recover for injuries done to them by the explosion of a powder house owned by the defendant situated in a populous part of the town. The two cases are therefore essentially different, both with regard to the facts involved, and to the nature of the relief sought. Secondly, because the principles and reasoning upon which the decision rests, are opposed to the unbroken current of modem authority, English and American, upon this subject.” That was a sweeping assertion made as to the English and American authorities. No English case was cited. We have here cited them and have shown that they are against the opinion in Dumesnil v. Dupont. The only American case there cited supporting the assertion is People v. Sands, supra, and the Sands case has long since been repudiated in effect by the courts of New York, as will be hereafter seen.

In the same year that Dumesnil v. Dupont was decided, the error of the court in that case was clearly shown by the decision in Regina v. Lister in the Queen’s Bench (Dearsly & Bell’s Crown Cases, 209), in which it was said: “The indictment certainly does not state that any noxious effluvia issued from the naphtha, or that the air. was cormpted by it, or that any bodily harm was done by it to any of the Queen’s subjects; but we conceive that to deposit, and keep such a substance in such quantities in a warehouse so situate, to the danger of the lives and property of the Queen’s subjects, is an indictable offence. The law of the 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 ignitible substance, could be kept in the cellar of a townhouse without thé owner of the house being liable to fine and 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 misdemeanor. 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.”

In Weir’s Appeal, 74 Pa. St. 230, the court said: “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 liability 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 bum 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.”

Then came the following cases, all holding that negligence is not necessary: McAndrews v. Collerd, 42 N. J. Law, 189; Heeg v. Licht, 80 N. Y. 579; Emory v. Hazard Powder Co., 22 S. C. 476; Laflin & Rand Powder Co. v. Tearney, 30 Ill. App. 321; Chicago W. & V. Coal Co. v. Glass, 34 Ill. App. 364; Laflin & Rand Powder Co. v. Tearney, 131 Ill. 322; Lounsbury v. Foss, 80 Hun (N. Y.), 296; Wilson v. Phoenix Powder Mfg. Co., 40 W. Va. 413; Reilly v. Erie R. Co., 76 N. Y. Supp. 620; Remsberg v. Cement Co., 73 Kan. 66; Bradford Glycerine Co. v. St. Mary’s Woolen Mfg. Co., 60 Ohio State, 560; Ricker v. Shaler, 85 N. Y. Supp. 825; State v. Paggett, 8 Wash. 579; Kerbaugh v. Caldwell, 151 Fed. 194.

The rule that it is necessary to show negligence is affirmed in Kinney v. Koopman, 116 Ala. 310; Collins v. Railroad, 104 Ala. 390; Kleebauer v. Western Fuse & Explosives Co., 138 Cal. 497.

It is thus seen that the courts of New York have repudiated, in effect at least, the position of Chief Justice Kent in People v. Sands, and are iri harmony with the English courts. Ten States of our Union and the-Federal court agree on that proposition, while only those of Kentucky, Alabama and California hold to the contrary.

In Emory v. Hazard Powder Co., supra, the court said: “It is not the number of persons affected by a matter that makes it a nuisance, but it is its injurious, offensive, and noxious character; and it is none the less a nuisance because it affects only one or two instead of a multitude. . There may be a private as well as a public nuisance, the distinction being-dependent upon the number affected, but the fact of nuisance itself does not depend upon number.”

Harper v. Standard Oil Co., 78 Mo. App. 338, is cited as holding that it is necessary to show negligence. The defendant in that case was sued for damages for keeping gasoline and coal oil in large tanks near plaintiff’s property, and the danger alleged was not of explosion but of fire. We are not discussing the law as to mere combustibles, but confine ourselves to explosives. It is true that coal oil and gasoline may become gas, and thus become explosive, but they were not in that condition in the Harper case.

. We thus see that the overwhelming weight of authority supports the conclusion we have, reached that powder is dangerous however carefully kept. If there were any doubt on that question as a matter of law, it is proved to he a fact by three of the defendant’s own expert witnesses, who say that powder is dangerous, one of them saying that he knew of no way of operating the mill without the danger of explosion. And that is the case whether the powder is in the mill or magazine.

But counsel for respondent say that there is a mere possibility and not a probability of an explosion, and that such mere possibility will not constitute a nuisance. They cite Dumesnil v. Dupont, supra, which does use such language. We have declined to follow that case in its conclusion, and shall not adopt the language used in reaching such erroneous result.

A powder magazine may cause damage in two ways, by explosion, which can only occur at irregular intervals; by danger, which is always present as to property and persons near enough. That danger, of itself, without an actual explosion constitutes it a nuisance.

In the anonymous case, supra, which is the very fountain of the law on this subject, the Chief Justice said, “To support this indictment there must be apparent danger or mischief already done.” The apparent danger is sufficient.

II. Defendant makes the claim that because it is licensed to do business in Missouri, and because it is conducting a lawful business and its prod-nets are useful and necessary for the pub-lie welfare and defense, therefore its plant should not be adjudged a nuisance, 3 Blackstone’s Commentaries, p. 217, say, “A like injury is, if one’s neighbor sets up and exercises any offensive trade; as a tanner’s, a tallow chandler’s, or the like; for though these are lawful and necessary trades, yet they should be exercised in remote places; for the rule is, ’sic utere two wt alienum non laedas (So use your property that you do not injure that of another).”

Joyce on Nuisances, section 16, says: “A business lawful in itself cannot be a nuisance per se, although, because of surrounding places or circumstances, or because of the manner in which it is conducted, it may become a nuisance. Certain kinds of business or structures, as powder houses or nitroglycerine works, are so,dangerous to human life that they may be maintained only in the most remote and secluded localities. ’ ’

In the anonymous ease above mentioned it was said that a powder magazine in a dangerous place is a nuisance even though powder is necessary for the defense of the kingdom. “Misplaced benefactions are malefactions.” [De Officiis, lib. 2, cap. 18.]

Defendant’s license to do business in this State does not place it above a citizen or corporation of this State. [R. S. 1909, sec. 3037.] It still remains subject to the laws as to nuisances.

III. It is a public nuisance.

Joyce on Nuisances, sec. 5, says: “A public or common nuisance is an offense against the public order and economy of the State, by unlawfully doing any act or by omitting to perform any duty which the common good, public decency or morals, or the public right to life, health, and the use of property requires, and which at the same time annoys, injures, endangers, renders insecure, interferes with, or obstructs the rights or property of the whole community, or neighborhood, or of any considerable number of persons; even though the extent of the annoyance, injury, or damage may be unequal or may vary in its effect upon individuals. Another factor in defining a nuisance is, that consideration should be given to places where the public have the legal right to go or congregate, or where they are likely to come within the sphere of its influence. A nuisance is not public though it may injure a great many persons, the injury being to the individual property of each. A nuisance is public when it affects the rights enjoyed by citizens as part of the public, as the right of navigating a river, or traveling on a public highway; rights to which every citizen is entitled.” On that proposition the authorities are practically agreed. The evidence shows that within the circle of danger there are public roads, two villages with post offices, a railroad over which two railroad systems run numerous trains, a public school house, and an entire community. The defendant put in evidence a list of thirty-eight persons to whom it paid damages caused by the explosion of November 12, 1908.

IV. Respondent says that this suit is not prosecuted by the State of Missouri or its Attorney-General, but by individuals in the name of the State and that the Attorney-General has no power to permit this to be done. The petition itself shows that it is .brought hy the Attorney-General. The evidence shows that the Attorney-General satisfied himself as to the propriety of the suit, signed the petition which had been prepared by counsel for the relators, and authorized it to be filed. The result shows the propriety of this action. The fact that the legal services for the plaintiff in the trial court and in this court were rendered by counsel employed and paid by the relators does not affect the question.

V. We now enter upon the consideration of the question that should never be decided without the exercise of great care and caution. A court of equity must always use a wise discretion in granting injunctions. Counsel for respondents say that we should consider the “relative advantages and disadvantages to the parties concerned.” If it is meant by that assertion that substantial, certain and irreparable damages to the plaintiff which might be prevented by injunction are to be left without remedy because of the fact that greater damages and disadvantages would result to the defendant, a wrongdoer, by the issuing of the injunction, we are driven to emphatically say no.

We find the facts to be that the defendant’s glaze at the time of its explosion contained about twenty thousand pounds of powder. As operated since then it contains about fifteen thousand pounds. There was during the year 1908 an average of over four hundred thousand pounds in the powder magazine. The dynamite on hands runs from comparatively a small amount to twenty thousand pounds or more. Each one of these three places is a nuisance, dangerous in itself, and the danger of each is increased by the proximity of the others. The explosion of the glaze damaged a passenger train and injured the people in it.' Its effect on the school house was such as would have severely injured the pupils had it been in school hours. Large metal shafts were thrown great distances across the road and the railroad, and onto the adjoining lands, and a plate glass window in Grandview four miles away was destroyed. A cistern at Hickman’s Mills, over a mile and a quarter away, was cracked. Window glass and sash, doors, plaster, flues and roofs were broken and injured within a radius of two or three miles, the damage diminishing by distance. Dangerous fragments of all kinds were thrown on the adjoining lands. A few frame buildings have been constructed in Holmes Park by reason of the business growing out of the defendant’s factory. In all other respects, building and real estate business within the circle of danger have practically ceased. The trial judge who found the issues for the defendant was impelled to say that the value of the land adjoining defendant’s plant has, been depreciated thereby one-half. We have made a calculation based on the depreciation of value. For illustration, we have placed a depreciation of $75 an acre on all land except the defendant’s within a radius of a half mile from the glaze as a center; $37.50 on all land in the next half mile zone; $12.50 on all within the next mile zone. It aggregates over $160,000. We do not hold that such amount is the exact one; but we feel confident that it is the minimum that could be reasonably fixed. It is bound to increase rapidly as the city grows in that direction. Defendant calls attention to the small amount' of damages paid for broken glass and other things. If that were all, we could easily dismiss plaintiff’s bill under the doctrine “de minimis non curat lex.” But the mere replacing of the apparent, superficial damage where a house has been wrecked by such an explosion, does not make the building what it was formerly. Its integrity is destroyed and confidence in it is lost. Ordinarily prudent people will not buy or build subject to such danger.

The evidence shows that the defendant, if compelled to close its works, will lose three-fourths the value of its buildings, machinery and equipment, amounting at first cost to about $120,000', making the loss about $90,000, not allowing for depreciation. That is only a little over half of what is lost by the landowners in the depreciation of their lands. But it is a loss which no court can contemplate without an impulse to prevent it by any legitimate means.

In 1904, the growth of Kansas City, co-operating with the general enhancement of values, began to rapidly increase the value of lands in that rural community, just ready to assume a suburban character. The people there knew nothing of powder works. The defendant was organized by men who were powder experts. They knew its dangers to the community, and they knew of the danger that they might be enjoined. Their contract with the railroad company shows that fact, and it can be reasonably presumed in tbe absence of -such evidence. The defendant deliberately made its choice of location, and we are called upon to say that the disastrous results of that choice shall fall upon innocent sufferers rather than on the one who invoked the disaster. If the damages caused were not substantial we could refuse to interfere. If they could be remedied at law, that course should be pursued; but that cannot be done. This is a proceeding to abate a public nuisance, detrimental to a large community, to travelers on the public roads and on the railroads and to the public school. There is no practical way in which those interests can be adequately protected except by abating the nuisance.

Respondent cites Bailey v. Culver, 84 Mo. 531. But in that case the court said (l. c. 540): “The right of the plaintiffs, if regard be had to the findings and action of the lower courts, is doubtful; the damage which they will sustain, if any, is inconsiderable, while if their prayer were heard and granted, it would be disastrous in the extreme to the defendants, resulting in the practical destruction of their building, without any material advantages accruing to the plaintiffs.” So it will be found that where the comparative injury or inconvenience has resulted in the refusal of relief, it has been where the plaintiff’s injuries were trivial, uncertain or remediable by suit at law, or else there have been other considerations which are not in this case. The correct principle was declared by Judge Sawyer in Woodruff v. North Bloomfield Gr. Mining Co., 18 Fed. l. c. 807, as follows: “Of course, great interests should not be overthrown on trifling or friv-. olous grounds, as where the maxim de minimis non curat lex is applicable, but every substantial, material right of person or property is entitled to protection against all the world. It is by protecting the most humble in his small estate against the encroachments of large capital and large interests that the poor man is ultimately enabled to become a capitalist himself. If the small interest must yield to the larger, all small property rights, and all smaller and less important enterprises, industries, and pursuits would sooner or later be absorbed by the large, more powerful few; and their development to a condition of great value and importance, both to the individual and the public, would be arrested in its incipiency. But if the comparison could be made in this instance, it would be impossible to say that the interests of the defendants, and of those engaged in the same pursuits, would be more important than those of complainant, and such as he represents in this contest. The direct contrary is maintained by the complainant with great force and plausibility. But we have nothing to do with this question as to the comparative importance of the conflicting interests, or the inconvenience to the defendants- by the stoppage of their works, if they infringe the material, substantial rights of others. It is the province and imperative duty of the court to ascertain and enforce the legal rights of the complainant, no matter what the consequence to defendants may be. This duty no court could evade if it would. ”

We will not discuss the question of the loss of the value of the good will of defendant’s business, nor of loss on contracts for future supplies of raw materials. We hope no such disastrous results as defendant anticipate will occur. As we conceive our duty, we are powerless to protect the defendant.

VI. It is said that plaintiff is precluded by laches. The defendant, so far as the evidence shows, built its plant without anyone in the community knowing anything about what its contemplated business wag to be. The first damaging explosion occurred November 12, 1908. On January 15, 1909, relators applied to the Attorney-General with a petition prepared to be signed and filed in the case. It was filed January 22, 1909, before the plant resumed sometime in February. There was no laches in fact. Moreover, laches will not be imputed to the State. [16 Cyc. 151; United States v. Kirkpatrick, 9 Wheat. (22 U. S.) 720; Terre Haute & I. Railroad v. State ex rel., 159 Ind. 438.]

It has been held that as against the State the defendant cannot claim a right by prescription to maintain a public nuisance. [State ex rel. v. Vandalia, 119 Mo. App. 406; Smith v. Sedalia, 152 Mo. 283.]

There has been no suggestion made that defendant’s business could be so conducted that the amount of explosive in any one place would be'such as not to endanger property or persons outside of defendant’s grounds. If such a thing is possible, the defendant should be permitted to show such fact in the circuit court.

The judgment is reversed and the cause remanded with directions to enter a decree in accordance with the prayer of the petition, with leave to the defendant to thereafter make a showing, if it sees proper so to do, on the question as to whether it can operate its powdér mill or maintain powder or dynamite magazines on its grounds in such a way that the amount of explosive in any one place at one time will not be dangerous to persons or property outside of defendant’s grounds, and in such a way that the explosive in one place will not be in danger of explosion from the powder or dynamite in any other place. If on such showdng it appears that defendant’s business can be so operated without danger to property or persons outside defendant’s grounds, the decree should then be modified accordingly.

Williams, G., concurs.

PER CURIAM. — The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All of the judges concur.


source: Caselaw Access Project

author: WILLIAMS, C.

license: Public Domain

text:
    EDWARD WARD v. JOHN T. NOLDE and JOHN O’F. DELANY; JOHN O’F. DELANY, Appellant.
    Division Two,
    June 23, 1914.
    1. MECHANICS’ LIEN: “Owner:” “Immediate Use and Enjoyment.” The phrase “for whose immediate use, enjoyment or benefit any building, erection or improvement shall be made,” as used in the mechanics’ lien statutes of Missouri, does not limit the word “owner” as used in the same statutes, but is used rather to include persons who would not be considered owners in the ordinary acceptance of that term.
    2. -: -: “Agent.” An “agent,” as the word is used in the mechanics’ lien act, may be a person with such limited authority as to be unable to bind his principal personally for the work, but who at the same time by an exercise of his limited authority will transmit to the person doing the work or furnishing the materials a right to a lien on the owner’s premises.
    3, -: Landlord and Tenant: Tenant Obligated to Make Improvements. A tenant, as such, is not the agent of the owner so as to establish a lien against the land of the owner for improvements made by the tenant, but whenever the landlord binds or obligates the tenant to construct permanent and substantial improvements beneficial to the reversionary interest, the person furnishing any part of the material or work for said specified improvements under or by virtue of a contract with said tenant has the right to a mechanic’s lien against the reversionary interest of the landlord in the land improved.

      i. -: -: -: This Case. The owner of real estate bound his lessee to make certain improvements not only by covenant in the lease but also by providing that the lessee should give a $20,000 bond that the covenant be performed. The lease contract also provided that the work should be done according to plans and specifications to be approved by the owner, and that the work should begin within ten days from the beginning of the term. Plans and specifications were prepared by the lessee and agreed to by the owner. The improvements were such as to be of substantial benefit to the owner’s interest, and the lease further provided that if the lessee should fail to comply with the covenant for improvements or fail to pay the rent, the lease should be forfeited and the improvements become the property of the owner. There was a further provision that the lessee should execute a bond ,for $40,000 to hold the owner harmless from all damages resulting from the improvement work and also to protect him against liens. Held, that such facts were sufficient to justify the trial court in finding that the lessee was the agent of the 'owner within the meaning of Sec. 8212, R. S. 1909, and that the owner’s interest was properly subjected to a mechanic’s lien for the improvements covered by the plans and specifications agreed to.
    5. -: -: Acquiescence in Tenant's Making Improvements. The fact that the owner may have consented to, or acquiesced in, the making of improvements by his tenant does not constitute the tenant his agent within the meaning of the mechanics’ lien act.
    6. —:-: -: Estoppel: Assignment to Landlord of Contractor’s Bond to Tenant. A contract of lease which obligated the lessee to make improvements, provided that the lessee should execute a bond for $40,000 to indemnify the lessor against any damages arising out of said improvement work and from liens. This bond was never executed, but before work was begun the contractor executed and delivered a $40,000 bond to the lessee, one of the provisions of which was that the contractor should save the lessee harmless “against costs, liens, claims and damages” arising out of said construction work, and the lessee, with the contractor’s consent, assigned the said bond to the lessor. Held, that the contractor's consent to the assignment of his bond did not operate as an estoppel or bar to his right to .establish his mechanic’s lien against the interest of the lessor.
    Appeal from St. Louis City Circuit Court . — Hon. William M. Kinsey, Judge.
    Affirmed (conditionally).

      T. K. Shinker for appellant.
    (1) The court erred in adjudging' a lien against the fee simple estate of defendant Delany. The plaintiff’s contract having been made with a lessee, his remedy is against the lessee only. R. S. 1909, sec. 8216; Rothe v. Bellingrath, 71 Ala. 55; Deatherage v. Sheidley, 50 Mo. App. 496; Koenig v. Mueller, 39' Mo. 165; Pinkerton v. LeBeau, 3 S. D. 440. (2) The court erred in holding that Nolde was agent of Delany within the meaning of section 8212 and that the work was done for the immediate use, enjoyment and benefit of Delany, so as to make his reversionary interest in the. premises liable to a lien. R. S. 1909', secs. 8212, 8234; Winslow v. Stone Co., 169 Mo. 244; Marble & Granite Co. v. Handlan, 85 Mo. App. 313 ; Wilson v. Lnbke, 176 Mr. 210; 20 Am. & Eng. Ency. Law (2 Ed.), 319; Albangh v. Decorating Co., 14 App. Cas. (D. C.) 113; Lumber Co. v. Morris, 170 Mo. App. 212; Francis v. Sayles, 101 Mass. 435; Block v. Murray, 12 Mont. 545; Cornell v. Barney, 94 N. Y. 394; Morrow v. Merritt, 16 Utah, 410; Conant v. Brackett, 112 Mass. 18 ; Reed v. Estes, 113 Tenn. 200; Beehler v. Ijams, 72 Md. 193; Weathers v. Cox, 159 N. C. 575; Poole v. Fellows, 25 R. I. 64; Gates v. Fredericks, 5 Ariz. 343 ; Steuberg: v. Lienneman, 20 Mont. 457; Meek v. Parker, 63 Ark. 372; Moore v. Vaughn, 42 Neb. 696; Plumbing Co. v. Irwin, 77 Neb. 385; Schrage v. Miller, 44 Neb. 818; Johnson v. Dewey, 36 Cal. 623; Waterman v. Stout, 38 Neb. 396; Boisot on Mechanics Liens, see. 289, note 135, sec. 291; Pelton v. Construction Co., 11 Mont. 281; Lumber Co. v. Nelson, 71 Mo. App. 110; Hardware Co. v. Churchill, 126 Mo. App. 462; Lumber Co. v. Churchill, 114 Mo. App. 578; McGuinn v. Mines Co., 160 Mo. App. 28; Seaman v. Paddock, 51 Mo. App. 465; Kline v. Perry, 51 Mo. App. 422; Marble Co. v. Bauman, 44 Mo. App. 392; VanRiper v. Martin, 61 Mo. App. 440; Otis v. Dodd, 90' N. Y. 336; Burkett v. Harper, 79 N. Y. 273; Knapp v. Brown, 45 N. Y. 207; Muldoon v. Pitt, 54 N. Y. 269; Deardorff v. Eberhartt, 70 Mo. 37. (3) The court erred in awarding plaintiff a lien against the fee simple interest of Delany for extra work, because Delany did not authorize it to be done, either by the lease or otherwise. (4) Ward knew when he made his contract with Nolde that the lease contemplated that the alterations should be made at Nolde’s expense and without liability on the part of Delany on Ms land. The court erred in refusing to hold that this barred Ward of any right to enforce a lien. Mills v. Matthews, 7 Md. 315; Waterman v. Stout, 38 Neb. 396; Schroeder v. Galland, 134 Pa. 237; Boisot on Mechanics Liens, sec. 133; Williams v. Vanderbilt, 145 111. 238; McClintock v. Criswell, 67 Pa. 183; Taylor v. Murphy, 148 Pa. 337; Given v. Church, 15 Phila. 300. (5) Ward signed a bond for $40',000' to protect against liens, and this bond by his consent was assigned to Delany. The court erred in refusing to hold that this also is a bar to a claim by Ward for mechanic’s lien. Wilson v. Davidson Co., 310 Tenn. Chan. 536; Gray v. Jones, 47 Ore. 40; Fidelity Assn. v. Jackson, 163 Pa. 208; Handley v. Ward, 70 Mo. App. 146; Lumber Co. v. Stoddard Co., 141 Mo. App. 15; Spears v. Lawrence, 10 Wash. 368; Pinning v. SMpper, 71 Md. 347; Gannon v. Church, 173 Pa. 242; Commonwealth Co. v. Ellis, 192 Pa. 321; Haine v. Dambach, 4 Pa. Co. Ct. 633; Benedict v. Hood, 134 Pa. 289'; Closson v. Billman, 161 Ind. 610; McHenry v. Knickerbocker, 128 Ind. 77; Miller v. Taggart, 36 Ind. App. 595; Aikens v. Frank, 21 Mont. 192. (6) The court erred in refusing to reform the $40',000 bond assigned by Nolde to Delany, and in refusing to enter judgment in favor of Delany and against Ward on this bond. Lumber Co. v. Clark, 172 Mo. 588; Lumber Co. v. Gates, 89’ Mo. App-. 201.

      M. G. Early and Echo. G. Kehr for respondent.
    (1) The mechanic’s lien law is purely statutory. The doctrine is fundamental in this State that it is highly remedial in its nature and should be liberally construed to give effect to its beneficent purposes. DeWard v. Smith, 63 Mo. 263; Dugan Co. v. Gray, 114 Mo. 497; Sash & Door Works v. Shade, 137 Mo. App. 23. (2) By the lease and facts in evidence appellant Delany’s interest in the premises is charged with Ward’s lien. The building was remodeled and reconstructed through Nolde for the immediate use, enjoyment and benefit of Delany. E. S. 1909, secs. 8212, 8214, 8216 and 8234; Winslow Bros. Oo. v. Stone Co., 169 Mo. 236; O’Leary v. Eoe, 45 Mo. App. 567; Lumber Co. v. Nelson & Haydel, 71 Mo. App. 110; Dougherty Co. v. Churchill, 114 Mo. App. 578; Hardware Co. v. Churchill, 126 Mo. App. 462; Lumber Co. v. Harris, 131 Mo. App. 94; McQuinn v. Federated M. & M. Co., 160 Mo. App. 28; Lumber Co. v. Morris, 170 Mo. App. 212; Lumber Co. v. Jones, 187 111. 20'3; Crandell v. Sorg, 198 111. 62; Harte v. Shuhert, 142 N. W. 517. (3) The report of the referee is equivalent to a special verdict and where there is evidence to establish the facts and the referees’ findings have been approved and confirmed by the circuit court, they will not be disturbed. Ferry Co. v. Eailroad, 73 Mo. 389; Berthold v. O ’Hara, 121 Mo. 97; Bank v. Donnell, 172 Mo. 402; State ex rel. v. Guaranty Co., 236 Mo. 375-. (4) The items called extra work by appellant Delany are part of the improvements which the lease required Nolde to make. They were ordered by Nolde and Matthews, the architect, and were approved by both of them. They are included in the stipulation of the parties fixing the items and amount of Ward’s demand. The referee found that they are properly a part of respondent’s lien claim. (5) Under the law of this State Ward has a lien for work done and material furnished for Delany’s house under Nolde’s lease. The fact that Ward knew that Nolde, as between himself and Delany, was to pay for the improvements cannot bar him from enforcing his lien. The authorities cited under point 2 of this brief show that he has such right. (6) The $40,000 bond given to Nolde to protect him against the result of accidents, in the course of the reconstruction of the building, is limited to liens growing out of such accidents. The bond in nowise bars Ward, from enforcing Ms lien against the building. The lien is' given by law and cannot be considered waived unless the intention to waive is clearly manifested. Lee v. Hassett, 39 Mo. App. 71; Lumber Co. v. Hoose, 67 Mo. App. 274; Nice v. Walker, 153 Pa. St. 123; Evans v. Grogan, 153 Pa. St. 121; Iron Works v. O ’Brien, 157 Pa. St. 174.
   WILLIAMS, C.

This is a suit to establish a méchame’s lien against a certain tract of ground and building, located at the southwest corner of Tenth and Locust streets, in the city of St. Louis, Missouri. Appellant Delany is the fee simple owner of the real estate sought to be subjected to the mechanic’s lien. In 1907, appellant Delany executed to defendant Nolde a twenty year lease on the five-story brick building located' on said premises and provided in said lease that Nolde should make and construct certain substantial alterations and improvements in said building. That portion of the lease applicable to the issues here was as follows:

“Said party of the second part agrees to pay as rental therefor, for a term of 20 years, to commence on the first day of January, 1908, the sum of $20,000 net per year for the first ten years and $24,000 net per year for the remaimng ten years of said term, payable in gold coin of the United States of America of the present standard of weight and fineness, or at the option of the lessor, its equivalent, in equal quarterly installments in advance on the first day of January, April, July and October, of each and every year during said term of 20' years. As additional rent for said premises, the lessee is to pay all taxes both general and special, for the year 1908' and thereafter, which may be levied, assessed or imposed against said property duxdng the term of this lease. Lessee shall and will deliver to lessor his bond to the amount of $20',000 in the Banker’s Surety Company, of Cleveland, Ohio, to be held by lessor as security to guarantee to said lessor a performance by said lessee of all the covenants and conditions herein contained, to remain until the alterations, additions and all changes in first floor and all other parts of building shall be completed, and that the sum of $20,000 shall be expended for such alterations, additions, and changes to the satisfaction of the party of the first part; and said lessee, not being in default in performance of any of the conditions and covenants of this lease, said bond shall be returned to said lessee. In case said Banker’s Surety Company should fail or go out of business for any reason, the lessee shall furnish an additional bond to take place of said Banker’s Surety Company bond, and said bond shall be satisfactory to lessor, and additional bond shall be furnished lessor for the amount above agreed upon. Lessee shall submit plans, drawings and specifications for alterations, additions and changes in building to lessor, for his approval, on or before January 1, 1908, and said alterations, additions and changes, must be satisfactory to lessor. Lessee shall, within ten days from the first day of January, 1908, begin and continue the alterations, additions and changes, in said building, until it is complete, and the sum of $20,000 is expended and paid out for said work.
“On or before January 1, 1908, and before commencing removal of stone, brick and steel columns, now supporting building on first floor, for the purpose of putting in new steel columns in place of columns uow supporting building, lessee shall and will deliver to lessor his bond to the amount of $40',000', or bonds in such sum and with such security or securities as may be satisfactory to and approved by lessor, conditioned to hold lessor harmless against damage or loss of any kind whatsoever arising out of the removal of said columns in building, and the.construction of all alterations and putting in new columns, as well as against costs, liens, claims, and demands of whatsoever kind and nature arising out of suck removal of parts of building, and the construction of new parts of building. Any failure to pay each quarterly advance rent when due, and all taxes, insurance, and the fulfillment of all other covenants and conditions herein contained and agreed by lessee shall produce a forfeiture of this lease, if so determined by lessor or his successors.”

The lease further provided:

“All alterations, additions and changes made on building by lessee shall be a part of the building and shall revert to the lessor at the expiration of this lease. Said lessee further covenants and agrees, at the termination of this lease, by limitation or forfeiture, to quit, surrender and deliver up to the lessor possession of the building and premises with all improvements thereon, all of which shall be and remain the property of the lessor.”

Pursuant to the provisions of said lease contract, Nolde procured to be made the plans and specifications covering said alterations and changes and entered into a contract with plaintiff "Ward by which plaintiff agreed to furnish the labor and material for said alterations and changes. Said lease was duly recorded and plaintiff read the same and was fully acquainted with its provisions prior to entering into the contract with Nolde to do said improvement work. Defendant Nolde went into possession of said building .under said lease on January 1, 1908, and a day or two later plaintiff began the work of making the alterations and changes, under his contract. After the work had progressed a few days, it was discovered’ that, by reason of the way the building was originally constructed, one or two changes would have to be made in the plans and specifications, and supplemental plans and specifications were made relative thereto. Both the original plans and specifications for the alterations and changes and also the supplemental plans and specifications above mentioned were shown to appellant Delany before the construction work was begun, and, as provided by the lease contract, Delany approved the plans and specifications and endorsed his approval thereon by signing his name on each page of said plans and specifications. The construction work provided for by the said original and supplemental plans and specifications was fully completed by plaintiff and the evidence shows that the reasonable value of the work called for in said plans and specifications was $22,975.31. During the progress of the work, defendant Nolde, the tenant, desired to have alterations and improvements placed in the building in addition to those provided for in the plans and specifications and contracted with the plaintiff for the furnishing of said extra improvements. The total cost of construction work done by plaintiff amounted to $30,284.06. Deducting the above amount of $22,975.31, the total cost of the work called for by original and supplemental plans and specifications, from the sum of $30,284.08, the cost of total work done, we find that the cost of the extras amounted to $7308.77. Of the extra items, the most important was a sprinkler system costing $5286.50. There is some evidence to the effect that appellant Delany was told by defendant Nolde that he (Nolde) was going to install the sprinkler system in the building and that in reply to this, Delany said: ‘-‘It would be a splendid thing.” Plaintiff completed the construction work about June 9, 1908. A day or two later the building was inspected by Nolde’s architect and by appellant Delany and at this time plaintiff delivered the keys of the building to Nolde’s architect. The lease provided that Nolde should pay the rent in advance in quarterly installments. He paid the first installment of rent amounting to five thousand dollars in January, 1908, but defaulted in the payment of the April installment of rent, Defendant Nolde failed to pay the plaintiff contractor any part of the amount due the plaintiff for the construction work. It appears from the evidence that defendant Nolde was, during this time, making diligent efforts to finance the leasehold estate and the construction work, but that, partly by reason of the money stringency occurring in 1907 and for other reasons, he was unable to raise the necessary funds; but up until some time in May he continued to reassure the plaintiff that he would soon have the money for him and to assure appellant Delany that he would soon have the money raised with which to pay the rent. Defendant Nolde failed to make good his promises, and on May 30, 1908, under and by virtue of the terms of the lease contract, appellant Delany served forfeiture notice upon defendant Nolde stating that he had declared the lease forfeited by reason of Nolde’s failure to comply with the covenants of the lease as to paying for the alterations and changes and the payment of the rent. Upon receipt of the forfeiture notice, defendant Nolde relinquished all rights under said lease and yielded peaceable possession of the premises to Delany.

Before entering into the possssion of the building defendant Nolde executed to appellant Delany the $20,000 bond called for in the lease contract to guarantee the making of the alterations and changes, but Nolde failed to execute to Delany the $40,000 bond, as provided by the lease contract, to protect Delany from damages, liens, etc. The plaintiff contractor had executed to defendant Nolde a $40,000 bond to protect Nolde from all damages and liens, and it appears from the evidence that instead of Nolde executing a $40,000 bond to Delany, as required by the lease contract, he simply assigned to Delany all of Nolde’s right, title and interest in and to the bond executed by plaintiff Ward to Nolde. This assignment was consented to, in writing, by plaintiff Ward. The evidence shows that plaintiff has never been paid for doing any of the construction work. The mechanic’s lien was duly filed and it is conceded by appellant that all of the labor and material mentioned in the mechanic’s lien went into this building and that the price claimed is reasonable. By this suit, plaintiff seeks to establish a mechanic’s lien for the total sum of $30,284.08 and interest, both against the leasehold interest of defendant N/olde and the fee simple estate of appellant Delany and also asks for personal judgment for that amount against defendant Nolde. Trial was had in the circuit court of the city of St. Louis. A referee was appointed to hear the testimony and make findings. The referee’s report and findings cover about forty printed pages and it is unnecessary that the same be set out in full here. "With reference to the work and labor furnished by plaintiff in doing the work provided for by the plans and specifications, the referee found that “defendant Nolde was within the contemplation of the lien law so far the agent of defendant Delany to procure the repairs, changes, alterations and improvements to be made as to entitle plaintiff to a lien against the fee,” and that the said work was done “for the immediate benefit of defendant Delany.” "With reference to the extras above mentioned, the referee found -that they were made with the architect’s approval and under contract with defendant Nolde, and that they “were made and installed with the acquiescence of defendant Delany and for his immediate benefit and use.” The conclusion reached by the referee, as approved by the circuit court in the judgment rendered, was that plaintiff recover a personal judgment against defendant Nolde in the sum of $34,151.34, being the amount due for the work plus six per cent interest from the 9th day of June, 1908, and that plaintiff have a lien for that amount upon the interest and estate of both defendant Nolde and defendant Delany in the building and ground above mentioned. Defendant Delany alone appealed. Additional facts necessary to a complete understanding of the legal questions involved will be stated in the opinion.

I. Appellant contends that “the court erred in holding that Nolde was agent of Delany within the meaning of. section 8212, Revised Statutes 1909, and that the work was done: for the immediate use, enjoyment or benefit of Delany so as to make his reversionary interest in the premises liable to a lien.”

In support of this contention, appellant cites a number of authorities, mostly from other States. Upon a careful reading of these authorities and the respective statutes of the different States cited, we find that the statutes of the different States and also the'basic facts upon which the respective decisions turn are in most instances so different from the Missouri mechanics’ lien laws and the facts involved in the present case as to furnish little, if any, aid in arriving at a correct solution of the question here involved.

Section 8212, Revised Statutes 1900, provides: “Every mechanic or other person, who shall do or perform any work or labor upon, or furnish any material, fixtures, engine, boiler or machinery for, any building, erection or improvements upon land, or for repairing the same, under or by virtue of any contract with the owner or proprietor thereof, or his agent, trustee, contractor or subcontractor, upon complying with the provisions of this article, shall have for his work or labor done, or materials, fixtures, engine, boiler or machinery furnished, a lien upon such building, erection or improvements, and upon the land belonging to such owner or proprietor on which the same are situated, to the extent of one acre;” etc.

Section 8214, Revised Statutes 1909, provides: “The entire land, to the extent aforesaid, . . . shall be subject to all liens created by this article, to the extent, and only to the extent, of all the right. title and interest owned therein by the owner or proprietor of such building, erection or improvement, and for whose immediate use or benefit the labor was done or the things furnished. ’ ’

Section 8234, Revised Statutes 1909, provides: “Every person; including all cestui que trust, for whose immediate use, enjoyment or benefit any building, erection or improvement shall be made, shall be inchuled by the words ‘owner or proprietor’ thereof under this article,” etc.

The result in this -case will depend largely upon the construction to be given to the word “agent” in the above statute. Under the present facts, we encounter no difficulty in the meaning' of the word “owner.” The phrase “for whose immediate use, enjoyment or benefit any building, erection or improvement shall be made ’ ’ is not intended as a limitation upon the person who is an “owner” as that word is ordinarily understood, but the phrase is undoubtedly used to include persons who would not be considered owners in the ordinary acceptance of that term. In other words, the use of the phrase in the statute is for the purpose of enlarging rather than that of limiting the ordinary definition of the word ‘ ‘ owner. ’ ’ This is apparent from the use of the phrase “shall be included by the words owner,” etc., in section 8234, supra. Delany owned the building and fee' and is an “owner” under the meaning of the statute whether the improvement was made for his immediate benefit or not. While it is therefore unnecessary that the improvement should have been made for Delany’s immediate use or benefit in order to constitute him an “owner” within the meaning of the statute, yet, if the facts disclose that the improvements made were for his immediate use or benefit it would no doubt have an important bearing upon the case as throwing some light upon the character of the relationship between Delany and Nolde, and would therefore be a circumstance that should be taken into consideration in determining whether Nolde was his agent within the meaning of the statute. Appellant insists that the “agent” mentioned in the statute must be a person whose agency is sufficient in its scope to' bind the owner personally for the price of the labor or materials furnished. "We are unable to agree with this contention. The purpose of the mechanics’ lien act is not to create a personal indebtedness not otherwise existing, but its sole purpose is to provide a lien under the conditions enumerated. If the facts in any case would show that the alleged agent in fact had the power to bind the owner personally for the cost of the work, then there would, of course, be little doubt but that the lien right would follow, for such a situation would be little different from that in which the owner contracted direct with the person furnishing the work and material. However, we do not think a fair interpretation of the act to be that the agency therein mentioned should be that wide- in its scope before the lien is created. For, if that be the meaning of the act then the word “agent” might well be treated as surplusage and discarded because an act done with a fully authorized agent is the same in law as an act done with the principal. We, therefore, conclude that the “agent” mentioned in the statute may be a person with such limited authority as to be unable to bind his principal personally for the work, but who at the same time by an exercise of the limited authority given will transmit to the person furnishing the materials a right to a lien upon the owner’s premises. Such a relationship is very similar to the agency of the contractor who contracts direct with the owner to do the work. The contractor has not the power to let subcontracts so as to bind the owner personally to pay the subcontractors, yet he has such authority of agency as when exercised will give to the materialman or subcontractor the right to a lien on the owner’s realty, for the reasonable value of the labor and material used, provided the labor and material be such as are contemplated by the contract. In the case of O’Neil Lumber Company v. Greffet, 154 Mo. App. 33, l. c. 37, it was properly said: “For though the original contractor is not the agent of the owner so as to bind him in all respects, as decided in Deardorff v. Everhartt, 74 Mo. 37, 39, there can be no doubt that the principle upon which he may obligate the property of the owner to the extent of the market value of materials is that of an implied agency of the owner for that purpose.”

It is true that a tenant, as such, is not the agent of the owner so as to establish a lien against the land of the owner for improvements made by the tenant. [McGuinn v. Federated Mines & Milling Company, 160 Mo. App. 28, l. c. 32.] Yet, on the other hand, this does not mean that a person by reason of being the tenant cannot be given the authority of agent to the extent of being able to bind the landlord’s property with a lien under any circumstances. The agency does not spring from the relationship of landlord and tenant, but it may spring from another source, to-wit — -any act or contract upon the part of the landlord which amounts to the establishment of the power of agent in the tenant. The statute here under discussion has, many times, been before the courts of appeal of this State for interpretation and construction and it has been uniformly held that whenever the landlord binds or obligates the tenant to build or construct permanent and substantial improvements beneficial to the reversionary interest of the landlord, the person furnishing any part of the material or work for said specified improvements under or by virtue of a contract with said tenant has the right to a mechanic’s lien against the reversionary interest of the landlord in the land improved — this, on the theory that the tenant, under such circumstances, becomes an agent of the owner within the contemplation of the mechanics’ lien statutes. [Lumber Company v. Nelson, 71 Mo. App. 110; Dougherty-Moss Lumber Co. v. Churchill, 114 Mo. App. 578; Curtin-Clark Hardware Company v. Churchill, 126 Mo. App. 162; McGuinn v. Federated Mines and Milling Company, 160 Mo. App. 28; Marty v. Hippodrome Amusement Company, 173 Mo. App. 707.]

In the case of Curtin-Clark Hardware Company v. Churchill, supra, the Kansas City Court of Appeals, speaking through Johnson, J., correctly announces the rule, here applicable, as follows: “It may be considered as settled that when the lessor contracts with his lessee for the making of improvements of substantial benefit to the estate of the former, materialmen and workmen who furnish material and labor in construction of the improvements are entitled to liens for their unpaid accounts which may be enforced against the estates of lessor and lessee. ... In cases where the lessor, either in the lease or otherwise, does nothing more than consent that the lessee at the latter’s option may make alterations or improvements in the premises for his own benefit and at his own cost, such consent imposes no obligation on the lessee to make the improvements and in the absence of such obligation, the lessor cannot be said to have contracted for them, and his reversionary estate will not be held subject to liens for the material and labor which enter into the improvements. But where, as in this case, no option is given the lessee, but he is compelled by his contract with the lessor to make certain alterations or forfeit his leasehold, the work should be regarded as being done under a contract with the lessor and the relationship thus established between the parties with respect to the improvement is analogous to that of owner and contractor and no reason can be perceived for saying that the unpaid accounts for material and work furnished under contract with the lessee should be denied the security of a lien against the estate of the lessor under the provisions of the mechanics’ lien law.”

In the case of McGuinn v. Federated Mines and Milling Company, the Springfield Court of Appeals, speaking through Gray, J., very tersely states the rule, as follows: “On the other hand, the rule is very generally recognized and established that where the landlord binds the tenant to make substantial improvements upon the property, that he thereby constitutes the latter his agent within the meaning of the mechanics’ lien law, and his property is subject to the lien for labor performed and material furnished in making’ such improvements under the contract with the tenant.” (Citing authorities.)

In the present case, D'elany bound Nolde to make said improvements not only by covenant in the lease contract but also by providing that Nolde should give a $20,000' bond that the said covenant be performed. This bond was executed. The lease contract also provided that the work should be done according to plans and. specifications to be approved by Delany, and that said construction work should be begun within ten days from the date of the commencement of the leasehold term. Plans and specifications providing for the work were prepared by Nolde and agreed to by Delany. The improvements which Nolde was thus bound to make were of a substantial nature and such as to be of substantial benefit to the interest of Delany in the premises. The lease further provided that if Nolde should fail to comply with the covenant as to the improvements or should fail to pay the stipulated rent, Delany could forfeit the lease, and upon forfeiture or termination of the lease the improvements should become the property of Delany. The lease further provided that Nolde should execute to Delany a bond in the sum of $40',000 to hold said Delany harmless from all damages resulting from the improvement work and also to protect Delany against “liens.” Applying the rule above announced, we find that the above facts were sufficient to justify the trial court in finding that Nolde was the agent of Delany within the meaning of section 8212, supra, and that the interest of Delany in said real estate was properly subjected to the mechanic’s lien, at least to the extent of the reasonable price of the labor and materials used in doing the work called for by the above-mentioned original and supplemental plans and specifications.

II. It is further contended that “the court erred in awarding plaintiff a lien against the. fee simple interest of Delany tor extra work because Delany did not authorize it to be done either by the lease or otherwise.”

The “extra work” to which reference is here made, as mentioned in the foregoing statement of facts, amounted to $7308.37. Of these extras, none were mentioned in or provided for by the plans and specifications which were endorsed or agreed to by Delany. In fact, after a careful review of the evidence, it appears very doubtful if Delany even knew some of the extras were to be in the building until they were in fact placed therein. Plaintiff does not claim that Delany authorized him to place the extras in the building. The extent of the evidence as against Delany on this point has reference to the larg'est item of the extra list, e. g., the sprinkler system. As to this item, plaintiff’s evidence tends to show that when Nolde told Delany that he contemplated placing a sprinkler system in the building, Delany replied: “It would be a splendid thing.” Delany testified that he knew of none of the extras until they were practically installed. With reference to these extras, the referee found that they “were made and installed with the acquiescence of defendant Delany and for his immediate benefit and use.” Measured by the rule announced in the preceding paragraph of this opinion, this was not a sufficient showing to constitute the tenant Nolde the agent of Delany so as to subject Delany’s land to a lien for such extras. These extras were ordered by Nolde and his architect of their own initiative and without authority so to do from Delany. The architect did not act as the representative of Delany. Plaintiff, before beginning the work, read the lease contract and says hé was familiar with its terms and by reason of its terms he considered he would have a lien right against the fee for the improvements made. He also had notice from the lease contract that the improvements authorized were limited to those to be provided for by plans and specification's to be approved by Delany. The evidence does not show that Delany did anything to waive this provision in the lease contract.

The fact that the owner may have consented to the making of improvements by the tenant does not constitute the tenant his agent within the meaning of the mechanics’ lien statute. [Winslow Brothers Co. v. McCully Stone Mason Co., 169 Mo. 236, l. c. 244.]

It follows that Nolde had no authority to involve the land of Delany in a lien for the amount of the extras furnished under the conditions here disclosed and that therefore the cost of said extras with interest thereon was erroneously included in said judgment lien against the property of Delany. The value of said extras, as above stated, was $7308.77, and the interest thereon from June 9, 1908, to the date of the judgment at six per cent per annum amounts to $934.29; therefore, said judgment lien as against defendant Delany was excessive to the amount of $8243,06.

III. The lease contract between Delany and Nolde provided that, on or before commencing said improvement work, Nolde should execute and deliver to Delany a $40',000 bond to hold gaid Delany harmless from any damages arising out of said improvement work and from liens, etc. This bond was never executed. But before the work was begun, plaintiff contractor executed and delivered to defendant Nolde a bond in the penal sum of $40,000. One of the conditions of this bond was that plaintiff Ward should “protect and save harmless” said Nolde “against costs, liens, claims and damages of whatsoever kind and nature arising out of” said construction work. Before the work was begun, defendant Nolde delivered the above-mentioned bond of Ward’s to Delany with the following assignment endorsed thereon: “The interest of John T. Nolde as lessee,. covered by this bond, is hereby assigned to John O ’F. Delany, owner, subject to the consent of the Banker’s Surety Company. (Signed) John T. Nolde, St. Louis, December 23, 1907.” The written consent of the surety and principal, Ward, to said assignment were also endorsed thereon.

In his answer, appellant alleged that “the execution and assignment of said bond to this defendant by the consent of plaintiff operates as an estoppel against the plaintiff from claiming any lien upon defendant’s property, and further that if plaintiff’s lien be established ag’ainst his interest in said land that the same “would instantly constitute a breach” of said bond in which event defendant is entitled to judgment on said bond and that the same be “allowed as a set-off against any claim that may be so established and allowed as a lien against defendant’s said premises.” The trial court found against defendant on this issue and the same is assigned as error. The condition of the bond is that Ward shall hold harmless the obligee, Nolde, from damage by liens, etc. Correctly interpreted this means that should Nolde pay Ward the contract price, the bond would protect Nolde from liens that might he filed hy materialmen or subcontractors under Ward. [Hartman v. Berry, 56 Mo. 487; Fullerton Lumber Company v. Gates, 89 Mo. App. 201; Badger Lumber Co. v. Muehlebach, 109 Mo. App. 646.] Nolde failed to pay Ward for said construction work, therefore, the fact that Ward establishes a lien against Nolde’s interest in said property would not constitute a breach of said bond. The above assignment of said bond in no manner undertook to enlarge the conditions thereof, or to change the obligee therein. It is not necessary to determine what rights accrued to Delany from said assignment but it is sufficient for the purposes of this review to say that the assignment bond does not undertake to protect or hold harmless the assignee against any lien that might be filed against his interest in said premises. That being true, the consent by Ward to the assignment of the bond cannot operate as an estoppel or bar to Ward’s right to establish his lien against the interest of Delany. The ruling of the trial court in disallowing this defense was proper.

IV. It appears from paragraph II above that the judgment lien allowed against the property of appellánd Delany is excessive to the extent of $8243.06.

It is therefore ordered that if, within ten days, plaintiff will enter a remittitur for $8243.06 of the amount of said judgment lien against the property of appellant, the judgment giving a lien to the amount of $25,908.28 against 'the said property of Delany will be affirmed, otherwise the cause will be reversed and remanded.

Roy, C., concurs.

PER CURIAM. — The foregoing opinion of Williams, C., is adopted as the opinion of the court.

All the judges concur.