
    HORACE C. ELLIS, BY NEXT FRIEND, v. PENNSYLVANIA IRON WORKS.
    Submitted December 6, 1907
    Decided February 24, 1908.
    A declaration which alleges that the defendant created a common nuisance by expelling heated water from its place of business into a city conduit, whence it was led in the conduit to an open unprotected space adjoining a public thoroughfare, into which space, by reason of its unprotected condition, the plaintiff fell and was injured, does not allege legal liability upon the defendant’s part for the injury this caused, and a demurrer interposed to the declaration should be sustained.
    On demurrer to declaration.
    Before Justices Vooehees and Miimriw.
    Eor the plaintiff, John J..Grandall.
    
    Eor the defendant, Grey & Archer.
    
   The opinion of the court was delivered by

Mintuen, J.

The declaration, while it alleges the creation ■of a common nuisance by defendant, does not sustain the allegation by the facts alleged. The extent of defendant's malfeasance is limited by the allegations to the discharge of heated water into a public conduit, in Atlantic City, in which the water was led to a common and unprotected space adjoining a city street, where it was discharged, and that plaintiff met her injuries by falling into this unprotected space. The ■gravamen of the allegation is the creation of a nuisance at the place where plaintiff was injured, and not the mere expelling ■of heated water into a public conduit where non constat the defendant had a legal right to discharge it. It does not ap-pear from the declaration that this place where the nuisance ■existed was the property of defendant or that it was under •defendant's control, or that defendant was in any manner possessed of dominion over it; while it does appear, at least inferentially, that the act which created the nuisance was not the expelling of the heated water into the conduit, but the action of the public authorities in leading the water thus expelled into the open space where plaintiff was injured. If it be assumed that the act of the plaintiff, in expelling the heated water into a public conduit, affords a basis for liability, still the familiar rule of law involved in the maxim causa próxima et non remota spectaiur, would seem to apply to this state of facts and relieve the defendant from liability.

The authorities cited by plaintiff of Durant v. Palmer, 5 Dutcher 544, and Jenne v. Sutton, 14 Vroom 257, involved the creation or maintenance of nuisances directly by the defendant in each case and are in nowise analogous to- the case at bar.

Eor these reasons the demurrer should be sustained, with costs.  