Sam Feldman

Explosive Liability: The Legal Politics of Dynamite in Industrial-Age America


It’s often said that one person’s rights end where another’s begin. That’s all well and good in theory, but if the law were that simple we’d hardly need courts. In real life two (or more) legitimate legal rights sometimes conflict with each other. What happens when my right to the pursuit of happiness butts up against your right to life or liberty? Who wins when my property rights entitle me to do something that infringes on your property rights?

The legal system has developed all sorts of ways of balancing conflicting rights, but these balancing acts aren’t universal and abstract; they’re fitted to the social priorities we’ve adopted, and they change incrementally over time along with those priorities. In times of rapid social and economic transformation, the rules governing these conflicts of rights transform too. These changes can allow us to discern the new priorities of courts and legislatures.

One of the greatest periods of rapid transformation in human memory was the Industrial Revolution, and the accompanying revolution in law required the re-weighting—and in some cases the abolition—of long-established rights. In the late 1800s, clashing views of the goals of law, property, and human activity were put on display in the legal battle over liability for powerful but destructive industrial innovations. Among the most destructive of these innovations were explosives such as dynamite, which allowed for the swift devastation of any impediments to progress. Would the employers of these industrial weapons—often large companies awash in profits—pay for the collateral damages caused by their blasting? Or would those unlucky parties injured in the blasts—usually impoverished laborers or innocent bystanders—be forced to shoulder the costs themselves?

The primary field of law that adjudicates such questions is tort law. Torts are a species of civil wrongs, as opposed to crimes. Despite some overlap, tort law and criminal law serve very different functions. Criminal law is about punishment and culpability; if you did something wrong, you’ll be made to suffer through some combination of incarceration, fines, and probation. Tort law is about liability and compensation; if someone suffered damages because of what you did or didn’t do, you’ll be made to pay whatever is required to make them whole again. But not every injury gives rise to a right to recover. Where the lines of liability are drawn determines the allocation of costs, and there are always some costs that society chooses to let lie wherever they may fall.

The entire field of tort law, sometimes equated with personal injury law, was born in the 19th century. As legal historian Lawrence M. Friedman wrote in A History of American Law, “In preindustrial society, there are few personal injuries, except as a result of assault and battery. Modern tools and machines, however, have a marvelous capacity to cripple and maim their servants.” The construction and operation of canals, railroads, and industrial machinery unleashed titanic forces that exacted a large toll in human lives. Every year in the late 19th century about one out of every 50 American workers was either killed or incapacitated for at least a month due to a work-related injury. On top of that, the blasts, chemicals, and environmental degradation of the industrial age caused extensive property damage. All this carnage flooded the legal system with complaints against industrial enterprises, but progress-minded courts managed to find ways to minimize payouts. The solutions they invented led to radical departures from the older laws of property and injury.

Damnum Absque Injuria

In pre-industrial England and the American colonies, the law assumed and enforced an agrarian conception of property rights. Owning real property in the 18th century meant above all possessing the absolute right to be undisturbed in the quiet enjoyment of your land. The general rule was sic utere tuo ut alienum non laedas: “use what is yours so as not to harm that which belongs to others.” If your neighbor wanted to use his land in some way that interfered with the natural, traditional use of your land, a court would side with you. For example, if your farm was located on a stream that you used for irrigation, your upstream neighbor couldn’t divert the flow in order to enlarge his own farm. You were entitled to have the same volume of water flowing through your property as you’d always had. Friedman documents the established English doctrine of “ancient lights,” which held that “a landowner whose land had always had a pleasant, open view had a right to keep things that way; he could block the owner of an adjoining plot of land from putting up a building that would impair this easement.” This principle could perhaps be justified in economic terms—the value of your property might be diminished if your view is impaired—but it wasn’t; as Morton Horwitz wrote in The Transformation of American Law, the idea behind the old common law, shaped as it was by the English gentry, “was that land was not essentially an instrumental good or a productive asset but rather a private estate to be enjoyed for its own sake.”

By the late 19th century, all but three U.S. states had rejected the “ancient lights” doctrine. If just about any landowner with windows on his house could prevent his neighbor from ever building anything, society couldn’t advance—and the advancement of society had become an unquestioned goal of American governments, including judges. In the age of the Industrial Revolution, the fundamental property right was no longer the ability to enjoy your land in peace, but the ability to develop it to its full economic potential, for your own benefit and (it was assumed) society’s. For the first time, the law adopted the position that whether you’ve suffered a remediable injury depends in part on an economic analysis of social benefit. If you’ve been harmed by some innovative use of technology or land but society’s been helped, it turns out you haven’t been harmed after all, at least in the eyes of the court.

Over time and state by state, this rule was reduced to something simpler: if what you’re doing is lawful and you’re doing it lawfully, you’re not responsible for the consequences to other people. The Supreme Court of Pennsylvania reached this conclusion in the 1886 case Pennsylvania Coal Co. v. Sanderson, which provides a good example of the reasoning judges employed in that era. In that case J. Gardner Sanderson and his wife Eliza sued a coal mining company for pouring the excrements of its mine into a stream called Meadow Brook that ran by their house in Scranton, causing all the fish to die, their pipes to corrode, and the water to turn “totally unfit for domestic use.” The court noted that, given the 100,000 tons of coal mined annually in Pennsylvania, the case presented “a question of vast importance,” and that if it decided for the Sandersons it might well have to order the coal mine to shut down. Given all the other Sandersons in the state whose water had no doubt been ruined, “the consequences must be that mining cannot be conducted except by the general consent of all parties affected.” Having thus established the stakes of the case, the court wrote:

It will be observed that the defendants have done nothing to change the character of the water, or to diminish its purity, save what results from the natural use and enjoyment of their own property. They have brought nothing onto the land artificially. The water as it is poured into Meadow brook is the water which the mine naturally discharged. Its impurity arises from natural, not artificial, causes.

In other words, it’s not like the mining company trucked in harmful chemicals and poured them into the stream; it just polluted it naturally, with all the natural harmful chemicals it found in the bowels of the earth, in the course of its natural coal mining activities. The court naturally concluded, then, that:

The defendants, being the owners of the land, had a right to mine the coal. It may be stated, as a general proposition, that every man has the right to the natural use and enjoyment of his own property; and if, while lawfully in such use and enjoyment, without negligence or malice on his part, an unavoidable loss occurs to his neighbor, it is damnum absque injuria [a damage without an injury]; for the rightful use of one's own land may cause damage to another, without any legal wrong. Mining in the ordinary and usual form is the natural user of coal lands. They are, for the most part, unfit for any other use.

The idea of damnum absque injuria, an actual damage suffered that does not amount to a legal injury, was not invented in the 19th century, but its use shot up as courts deployed it against sic utere tuo. Judicial concern with shielding socially productive activities from liability led to a withdrawal of legal protection against injuries caused by those activities. This change better suited a society in which property might be considered “unfit for any other use” besides coal mining. Using your land for any purpose other than maximum economic exploitation might still be allowed, but it certainly wasn’t to be expected or encouraged. Absolute property rights were likely to interfere with industrial development, so the court did away with them:

The plaintiff's grievance is for a mere personal inconvenience; and we are of opinion that mere private personal inconveniences, arising in this way and under such circumstances, must yield to the necessities of a great public industry, which, although in the hands of a private corporation, subserves a great public interest. To encourage the development of the great natural resources of a country trifling inconveniences to particular persons must sometimes give way to the necessities of a great community.

Negligence and Strict Liability

When the Pennsylvania court announced that no liability attached to someone who injured his neighbor “while lawfully in such use and enjoyment [of his property], without negligence or malice on his part,” it was following the lead of a number of other states. This series of decisions disestablished the old obligation to avoid injuring others; the new rule was that you were only liable for injuring someone if your act was illegal, malicious, or negligent. Even in those cases you might be able to escape liability: for example, you could argue that the injured party knowingly assumed the risk—he knew or should have known how dangerous it was to come work in my factory—or that both of you were negligent, which meant only the injured party had to pay for the damages. Between these defenses and the fellow-servant doctrine, which basically barred an employee from suing an employer for an injury that was the fault of another employee, it was almost impossible in practice for a worker to win compensation for work-related injuries.

This negligence standard soon became the rule in American jurisdictions, to the great detriment of society’s most vulnerable members. Horwitz argues that “the law of negligence became a leading means by which the dynamic and growing forces in American society were able to challenge and eventually overwhelm the weak and relatively powerless segments of the American economy.” Bystanders injured by an industrial enterprise engaged in building a railroad or blasting a tunnel now had to bear the cost of their own injuries unless they could show the business was doing its work badly; so long as it met the normal standard of care for companies carrying out that work, it wouldn’t be held responsible.

A few exceptions were carved out, however, for activities that created a high degree of risk even when conducted non-negligently; anyone engaging in these abnormally dangerous activities was strictly liable to whoever was injured, and evidence that the activity had been carried out skillfully and carefully was immaterial. The question of what activities fell within this “strict liability” exception was thus a primary site of contention between industrial enterprises and the employees and bystanders injured by their activities.

It should be emphasized that the point of strict liability, and tort liability in general, is not to punish people or ban activities; that’s what criminal law is for, but sometimes we have reasons not to criminalize dangerous activities. For example, it’s a long-established rule in most American jurisdictions that a dog owner is only liable for a dog bite if he or she was negligent—for example, if he or she wasn’t obeying a leash law, or saw clear evidence that the dog was about to bite and did nothing to stop it. But the standard is different if the dog had bitten people before; in that case the owner knew (or should have known) that the dog was dangerous, and he or she is strictly liable for any more bites. Keeping a dog who’s been known to bite people is a bit of a hazard, but we don’t really want to mandate that every dog who’s bitten someone needs to be euthanized. Instead we’ve decided to give the owners of such dogs a strong incentive to be really careful about their dogs by saying that, no matter how careful they are, they’ll be paying the medical bills of anyone who gets hurt. Strict liability forces people to internalize the costs of their decisions rather than pushing them onto other people who may just have been at the wrong place at the wrong time.

The dilemma for 19th-century courts was that the new industrial activities were both abnormally dangerous and absolutely necessary to the advancement of society. The former consideration militated in favor of strict liability, the latter in favor of little or no liability. Someone has to bear the costs of the inevitable deaths and damages from the grinding gears, belching smokestacks, and sudden fireballs; should it be the innocent victims, who can’t do anything to prevent the accidents? Or should it be the industrialists, who might thereby be deterred from socially beneficial activities? In the 1873 case Brown v. Collins, Chief Justice Charles Doe of the New Hampshire Supreme Judicial Court answered this question in no uncertain terms. Strict liability for dangerous artificial conditions, he wrote, “would impose a penalty upon efforts, made in a reasonable, skilful, and careful manner, to rise above a condition of barbarism. It is impossible that legal principle can throw so serious an obstacle in the way of progress and improvement.”

Not all courts found this obstacle as impossible as Doe; the boundary between the general rule of negligence and the exception of strict liability remained hotly contested, and courts often went back and forth. In 1849, for example, the Court of Appeals of New York (the state’s highest court) ruled on several cases in which blasting for a section of the Erie Canal damaged neighboring property. In Hays v. Cohoes Co., gunpowder blasts caused rocks and gravel to rain down on a neighboring house, blocking out the light, breaking windows and doors, and knocking down the chimney and stoop. The court held that the canal company had to pay for the damage its explosions had caused even though there was no proof of negligence. If that meant it couldn’t afford to detonate gunpowder freely on its own land, that’s a shame, but it’s better than forcing neighboring homeowners to watch their houses be destroyed without legal recourse. The court explicitly cast its holding as a judgment on conflicting rights:

The defendants had the right to dig the canal; the plaintiff, the right to the undisturbed possession of his property. If these rights conflict, the former must yield to the latter, as the more important of the two, since, upon grounds of public policy, it is better that one man should surrender a particular use of his land, than that another should be deprived of the beneficial use of his property altogether, which might be the consequence if the privilege of the former should be wholly unrestricted.

In 1873, however, the same court reached a different result in Losee v. Buchanan, in which the Saratoga Paper Company was held not liable for the destruction caused by an exploding steam boiler, which “was projected and thrown on to the plaintiff's premises, and through several of his buildings,” causing destruction along its trajectory. The court inexplicably found that the old example of strict liability for keeping abnormally dangerous animals didn’t provide a helpful analogy for dealing with abnormally dangerous inanimate objects. Instead, it rested its decision on a sort of social contract theory:

By becoming a member of civilized society, I am compelled to give up many of my natural rights, but I receive more than a compensation from the surrender by every other man of the same rights, and the security, advantage and protection which the laws give me. […] We must have factories, machinery, dams, canals and railroads. They are demanded by the manifold wants of mankind, and lay at the basis of all our civilization. If I have any of these upon my lands, and they are not a nuisance and are not so managed as to become such, I am not responsible for any damage they accidentally and unavoidably do my neighbor. He receives his compensation for such damage by the general good, in which he shares, and the right which he has to place the same things upon his lands.

As Harvey Losee sorted through the wreckage on his land, contemplating the cost of repairs he’d have to pay for himself and the chance that another steam boiler could come flying through at any moment, he surely considered himself lucky to share in the general good of being able to purchase the fine products of the Saratoga Paper Company.


The Erie Canal builders in Hays v. Cohoes did their blasting using gunpowder, one of the only chemical explosives known at the time. Gunpowder is classified as a low explosive because it burns “slowly,” which is to say at subsonic speeds. In the mid-19th century the first high explosives were developed; they burned at supersonic speeds, producing a much more powerful explosion. The most stable and therefore most useful of these high explosives was dynamite, patented by Alfred Nobel in 1867. Dynamite caught on fast and became the standard explosive for mining, tunneling, clearing land, and other military and civil engineering projects. A side effect was the destruction of property and lives located too close to blasting sites.

While state courts struggled over the standard of liability to apply to dynamiting, the case of Sullivan v. Dunham, decided in 1900 by the Court of Appeals of New York, shows a representative compromise. The defendant in this case, Carroll Dunham, had employed a team of blasters to obliterate some trees on his land in Westchester County. On June 10, 1895, the blasters placed dynamite under the roots of a large living elm tree, between 60 and 70 feet tall, and exploded it. Tree fragments flew everywhere, and one section of the stump traveled through 412 feet of forest to land on a nearby highway, where it struck 19-year-old Annie Harten, fatally wounding her. Harten’s estate sued Dunham, and the court, citing Hays v. Cohoes, ruled in favor of the estate. Attempting to reconcile the contradictory precedents regarding blasting liability, the court held that, if your explosion propelled actual objects off of your land and onto someone else’s, where they caused damage, you were strictly liable regardless of negligence; otherwise—for example, if your explosion just caused shockwaves that shook your neighbor’s house apart—you were only responsible for any damage or injuries if you’d been negligent. This distinction was based on the old common law idea of trespass, which of course was concerned with entering or throwing things onto other people’s property rather than shaking the earth itself. Of all the ancient English legal concepts to perpetuate, this may not have been the most appropriate for the situation, but the court did manage to settle on a ruling that provided compensation for the estate of unlucky Annie Harten without overly endangering the productive blasters of New York State.

A different compromise was struck by the Supreme Court of Pennsylvania six years later in Sowers v. McManus. The defendant in this case, one Patricius McManus, was using dynamite to widen a railroad bed. It seems that the dynamite was being stored in a shanty, and one morning an employee of McManus’s built a fire near the shanty. A couple hours later there was a huge explosion which damaged the property of Mary and Philip Sowers, who lived nearby. They sued McManus but lost. The Supreme Court held that with “an explosive of the dangerous character of dynamite […] the highest degree of care must be exercised, and the failure to take every reasonable precaution to prevent explosion of it while in storage is negligence.” However, the Sowerses had not managed to prove that McManus failed to take every reasonable precaution. They had only one witness who’d seen the fire near the shanty, and the witness didn’t know how much dynamite was in the shanty and couldn’t establish that the fire caused the actual explosion. No other evidence was available, in part because it’s very hard to prove anything about a shanty that’s now a crater; in fact, other courts have applied strict liability for explosive substances for precisely this reason—explosions tend to destroy evidence of what caused them. The Supreme Court of Pennsylvania appeared to be holding McManus to a high standard of care, but unlike in strict liability the burden of proof still fell upon the Sowerses, who ended up having to shoulder the cost of their own property damage.

Exuberantly Active Citizens

Late 19th-century America was a great place for blasting, but a dangerous place to be an innocent passerby. This was the result of conscious and continual attempts by judges to shield industrial entrepreneurs from the bloody consequences of their marvelous machines. It was a legal regime in which, as the British legal writer Thomas Beven put it, “the quiet citizen must keep out of the way of the exuberantly active one. The duty is to avoid being injured, not to avoid injuring.” The consequences for a breach of this duty could be far more severe than a lost lawsuit.

In the first decades of the 20th century, the trend began to reverse itself. This may have been in part due to trends in legal philosophy, or it may have been because fabulously wealthy industrial corporations now indisputably dominated the American landscape; it had become difficult to regard them as in need of protection from liability, or even particularly susceptible to deterrence. By the early 1930s, most American jurisdictions applied strict liability to blasting with dynamite as an abnormally dangerous activity. Sometimes this liability extended even to storing dynamite. In the same time period, other developments, including safer new technologies, the growth of the regulatory state, and higher standards of workplace safety, combined to reduce the damage from the great industrial weapons of the earlier industrial era. The frontiers between negligence and strict liability, however, continue to be fought over to this day. Accidents happen, as they say. Often they happen even when everyone acts within his or her rights. The question for society and the courts, then, is who will bear the cost?