(dissenting):
The following material facts are set out in the declaration: While the defendant in error, Mrs. Mollie P. Clark, was driving-in her buggy along one of the streets of Radford, the employees-of the city, without notice or warning of any kind, set off three-uncovered blasts in a rock quarry operated by the city for the purpose of obtaining material with which to repair the streets-The quarry was situated inside the corporate limits and within sixty-five feet of the street, and was seventy-five feet from the-point of accident. The noise from the explosions, together with -the falling rocks in the street and upon the vehicle, frightened the horse, and caused it suddenly to turn and run away, overturning the buggy and inflicting upon the plaintiff the injuries-of which she complains. . ...
These allegations were proved at the trial, and thereupon the jury awarded the plaintiff $500 damages.
Upon the theory that the act of the city in thus operating, the rock quarry was an ultra vires act, for which the municipality could not be held liable in damages, this court reversed the judgment of the trial court and sustained the demurrer to the declaration.
In the two Virginia cases (Duncan v. City of Lynchburg, 2 Va.Dec. 700, and Donable v. Harrisonburg, 104 Va. 533) relied on, in part, to sustain this ruling, the rock quarries in question were both located outside the city limits, which fact seems to have exercised considerable influence with the court.
The charter of Radford and the general law impose upon the city the imperative duty of keeping its streets in reasonable repair, and I should be loath to hold that such grant of power and imposition of responsibility does not carry with it as a necessary and fairly to be implied incident the power to take rock and other needful material from its contiguous property to enable the city to discharge that duty. It is matter of common knowledge *206that cities and towns throughout the country resort to such sources of supply in opening, grading, and repairing streets, and to deny them that privilege would in many instances occasion intolerable inconvenience and expense.
But I think the action is maintainable on another ground. The conceded duty which rests upon all municipalities to keep their streets in reasonably safe condition would be but half discharged were they permitted to suffer dangerous operations to be so negligently conducted in the immediate vicinity of such streets as to jeopardize the safety of the traveling public along the same. Such works as imperil human life and safety are classified as public nuisances. And in City of Richmond v. Smith, 101 Va. 161, it was held: “If a city, without legislative authority, authorizes the erection of a nuisance in one of its streets, it is liable in damages for the injuries resulting therefrom. The city cannot escape liability merely because it exceeded its powers in authorizing the nuisance.”
Blasting, it is true, is not per se a nuisance; but blasting near a highway or street becomes a nuisance when it is conducted in such a manner as to endanger the safety of travelers along such highway or street. City of Paris v. Commonwealth, (Ky.) 93 S. W. 907.
In 28 Cyc. 1292, n. 38, the reason for the rule is stated thus: “Nuisances In or Near Public Street—In General.—The doctrine of the liability of a municipality for failure to abate a nuisance in or near a public street arises out of the rule enforced in those jurisdictions that a municipal corporation is bound to keep its streets and sidewalks in a reasonably safe condition, and that failure to perform this duty constitutes a breach of ministerial duty, and the liability does not rest upon a failure to perform a judicial duty of abating a nuisance. Dalton v. Wilson, .118 Ga. 100. And upon this principle it is held that if the nuisance is in or near a public street, so as to endanger the safety of travelers thereon, a municipality will be liable for any special damage suffered by reason of the existence of the nuisance and the failure to abate the same. Dalton v. Wilson, supra; Parker v. Macon, 39 Ga. 725; Moore v. Townsend, 76 Minn. 64.”
As the owner of property, a municipality is amenable for its *207proper use. “The corporation of the city of New York has no more right to erect and maintain a nuisance on its lands than a 'private person possesses.” Bower v. New York, 3 Barb. (N. Y.) 254, 258.
In this aspect of the case, sustaining the demurrer involves the incongruity that if a city suffers a third party to operate a rock quarry in a negligent manner, so near to one of its streets as to inflict injury upon a traveler thereon, it is liable in damages; yet, if it does the same act by its own servants, it is not liable. A course of reasoning which leads to such result can hardly be sound.
If the act were ultra vires, the underlying principle upon which the city would be liable is that, being charged with the duty to keep its streets in reasonably safe condition, it is estopped to set up the defense that the street was rendered unsafe by a nuisance of its own creation, which it had no authority to maintain.
I am of opinion that the judgment ought to be affirmed.
Reversed.