I respectfully dissent from the opinion of the majority. I would reverse the judgment of the lower court and remand the cause.
Of course, under the present state of our laws there would be nothing to prevent the city from extending its limits so as to include the premises of the appellant, in which event I would agree that the settled law of this state would require us to sustain the trial court. Indeed, the same thing would be possible for the city even if the appellant should move to a point north of Amarillo so long as by its own city limits extension Amarillo did not “git thar fustest”.
But we are dealing with a place of storage outside the limits of the city, in which the appellant stores fireworks. I concede that fireworks in any quantity are inherently dangerous, that their storage endangers the safety and welfare of persons and property proximate thereto, that their storage constitutes a nuisance per se in so far as may be concerned any individual or section of “the public” who may be within a certain range of proximity to the place of storage. I concede also that in view thereof public necessity justifies the exercise of the police power in connection with such storage.
But whose police power? That of the City of Fort Worth? Perhaps! Had the evidence shown that the fireworks stored by the appellant were in such quantity that should their explosion or other expenditure of energy be brought about there would be an exposure to damage or harm of some property within the city limits of Fort Worth or to some citizen of Fort Worth who was at the time within the city’s limits, or even that some such citizen had an apprehension of the danger of such under some state of facts disclosed by the *155evidence to be well-founded, I could find justification in the record for an injunction. I could find such justification because it would then be shown that the storage of the fireworks was a nuisance as a matter of fact within the scope of the city’s authority to suppress. But since the storage in question might not be even a nuisance in fact in certain localities, I do not believe we should assume it is a nuisance per se in a locality outside the city limits. See 66 C.J.S., Nuisances, § 3, p. 734.
As stated above, I concede that the storage of the fireworks constitutes a nuisance per se to someone or to some property. The record shows property proximate to the place of the fireworks storage, which property is certainly sufficiently near to the place so that apprehension of danger on the part of the owners or occupants of the property would be properly considered as well-founded. But this property is outside the territorial city limits. Likewise, the occupants thereof are outside the territorial city limits. These persons are not seeking an injunction. Only the City of Fort Worth seeks an injunction, though it actually shows nothing more than the fact that fireworks in some degree of quantity are stored within 4,200 feet of its city limits, and that the Legislature has delegated to it the power to define nuisances and to prohibit the same, not only inside the city limits, but outside said limits for a distance of 5,000 feet.
As the opinion of the majority reflects, a city cannot by ordinance make that a nuisance which is not one in fact. I do not believe that appellant’s storage of the fireworks is shown to be a nuisance in fact because there is no evidence that such constitutes any threat to any citizen in Fort Worth or any property within its limits. The character of nuisance under consideration is that of the type which threatens danger or harm. Therefore it is my opinion that more than what threatens is necessary to be shown, but that what is threatened must also be shown, and that therefore — under the circumstances of the case — the injunction enforces a law of the City of Fort Worth which assumes to be a police regulation, but which actually is (or may be) an invasion of the appellant’s right of property without any compensating advantages. This I believe because the evidence it is not made to appear that any Fort Worth citizen’s health, safety, comfort or welfare will be preserved thereby. Spann v. City of Dallas, 1921, 111 Tex. 350, 235 S.W. 513.
It is only with the health, safety, comfort or welfare of its own citizens, and with property within its territorial jurisdiction, that the city’s ordinance should be considered concerned, and I believe that it should not be held that the storage of the fireworks is a nuisance as regards the “public” of the city or any member thereof, absent some demonstration that the storage was in fact a nuisance.