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THE BELL0NA COMPANY'S CASE. 447
to be done, can affect the question of right between these parties.
Unless, indeed, the damage should be shewn to be so small, as, that
the law would take no notice of it; as in actions of waste, where
the waste is unimportant in its nature and trivial in amount, (d)
But these buildings, it must be recollected, have been put up, as
is alleged and admitted, for the manufacture of gunpowder; and
are more properly suited for that purpose than if they had beta
constructed of brick, stone, or hard materials strongly bound to-
gether; in which kind of edifices an explosion would be attended
with much more certain and wide-spreading destruction than in
lightly framed houses or sheds, such as these are described to be;
and therefore they could not be complained of as nuisances by
those residing in their vicinity; because of their being too danger-
ously or improperly constructed for the uses to which they are
applied, (e) It is then manifest, that the plaintiffs' cause of com-
plaint cannot, in any sense, be deemed frivolous because of the
frail nature of their buildings.
As to the mere facts of this case there is then no substantial
difference between the parties. The plaintiffs assert and the de-
fendants admit, that the proposed rail road has been located, and
is intended to be constructed over a part of the land of the plain-
tiffs; and that one of their edifices, erected for the manufactory of
gunpowder, is intended to be removed. The distance which the
road is to pass over the land of the plaintiffs, and the amount of
the increased hazard, although alleged and denied, and not parti-
cularly described, are unimportant as regards the questions of right
between these litigants.
By the act of 1827, ch. 72, s. 15, the plaintiffs are authorized,
for the purpose of making their rail road, to agree with the owner
of any land for the purchase, or use and occupation of the same,
'and if they cannot agree, and if the owner or owners, or any of
them, be a feme covert, under age, non compos mentis, or out of the
county in which the property wanted may lie,' application may be
made to a justice of the peace, and proceedings bad to have it
condemned to their use. Upon which it was urged, that although
the defendants may have an unlimited power to contract or agree,
in any manner, with the owner for any land they may want for their
road; yet the power to take the lands of others from them, against
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(d) The Governors of Harrow School v. Alderton, 2 Bos, & Pul, 86; The Uni-
versities of Oxford v. Richardson, 6 Ves. 706.~(e) Crowder v. Tinkler, 19 Ves. 626.
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