Cardwell, J.,
delivered the opinion of the court.
The declaration in this action, brought by Mrs. Mollie P. Clark against the city of Radford, consists of five counts, which, after setting out that the defendant is a municipal corporation chartered by the legislature of Virginia, and charged with the duty of keeping its streets in a reasonably safe condition for use of the public; alleges that said defendant city was, on the * * * day of September, 1909, through its servants and agents, blasting with powder and other explosive material in, and getting out rock for use on its streets from, a rock quarry, at a distance of sixty-five feet from a street of the city known as Grove avenue, and that while the city was so engaged in blasting, on the date named, the plaintiff was driving along said street and within seventy-five feet of the point of the blasting, and without knowledge thereof on her part, when a succession of blasts were set off, frightening her horse, causing it to become unmanageable and suddenly to wheel around in the street, throwing plaintiff violently upon the ground, whereby she was seriously injured and her buggy and harness destroyed.
The neglect of the city to perform its duty of keeping its streets, and particularly Grove avenue, in reasonably safe condition for the use 'of travelers thereon is alleged in the five counts in plaintiff’s declaration, as follows: The first count charges a failure to give warning of its intention to put off the blasts; the second charges a failure on the part of the city to cover its blasts;' the third charges the employment by the city of unskillful, careless, and negligent servants; the fourth merely alleges damages to the buggy and harness; and the fifth combines the negligence alleged in the first, second, and third counts, and practically charges negligence on the part of the city in maintaining or failing to prevent a nuisance, resulting in injury to the plaintiff.
The defendant city demurred, in writing, to the declaration and each count thereof, which demurrer was by the court overruled, whereupon the plea of not guilty was entered and issue joined; and at a subsequent term of the court a trial by jury was had, resulting in a verdict and judgment against the city for $500 damages in favor of the plaintiff, with interest and costs, to which judgment this writ of error was awarded.
[201]*201Of the eight assignments .of error, we find it necessary to consider only the first, which is to the ruling of the court upon the demurrer to the declaration.
“In order to render a municipal corporation liable in damages for the torts of its agents and employees, it is necessary, among other things, that the injury complained of be caused by or result from an act done in the exercise of some power conferred upon it by its charter or other positive enactment.” Duncan v. City of Lynchburg, 2 Va. Dec. 700, 34 S. E. 964, 48 L. R. A. 331; Donable’s Adm’r v. Town of Harrisonburg, 104 Va. 533, 52 S. E. 174, 113 Am. St. Rep. 1056, 2 L. R. A. (N. G.) 910, and authorities cited in those cases.
In the first of the cases just cited the opinion by Buchanan, J'., defines what powers, under the settled law, a municipal corporation can exercise, and none other, and it was there held that the city of Lynchburg, either under its charter provisions or the general law relating to such corporations, had no power or authority to create and maintain a nuisance resulting from the operation of a rock quarry outside of the city’s limits, although the rock quarried was for use in the construction and maintenance of roads which the city was authorized to construct and maintain, the nuisance complained of having been created and continued by the agents or employees of the city while engaged in a work which was without its corporate powers.
In Donable v. Harrisonburg, supra, the injury sued for resulted from the operation of a rock quarry outside of the corporate limits of the town, the stone gotten out to be for use upon the streets of the town; but it was there also held that there could be no recovery for the injury, because the operation of the rock quarry was ultra vires, for the reasons (1) that neither the charter nor the general law gave the town authority to operate a rock quarry, and (2) because the operation of the quarry was carried on outside of the corporate limits.
It has been repeated in the authorities that it might be convenient and even profitable for a municipal corporation, in order to perform certain duties imposed upon it as such corporation, to own and operate a rock quarry or other like undertakings, yet it has no power to do so unless in express words conferred in its [202]*202charter, or necessarily or fairly implied in or incidental to the powers expressly granted.
In this case, as in Duncan v. Lynchburg and Donable v. Harrisonburg, supra, to operate a rock quarry was neither necessary, fairly implied in, nor incident to the duty of the city of keeping its streets in a reasonably safe condition, nor essential to the declared objects and purposes of the corporation. We fail to see how a different rule of law is to be applied where the injury sued for resulted from an unauthorized act of a municipality, done within its corporate limits, from that applied by this and other-courts, as well as sanctioned by the ablest law writers, to cases in which the tort was committed outside of the corporate limits, for the tort committed either in the one or the other case flows from an ultra vires act.
Neither the charter of plaintiff in error, city of Radford, nor the general laws of the State, authorize the operation, either within or without its corporate limits, of a rock quarry.
It is contended for defendant in error that, although there is no allegation or complaint made in her declaration that the street on which she received her injuries was unsafe by any defect therein, she is nevertheless entitled to recover for her injuries because the street was made unsafe by the operation of the rock quarry located sixty-five feet therefrom.
The authorities very generally hold that noises outside of the limits of the highway, amounting to a public nuisance, are not a defect in the highway.
The allegation was made in the case of Lincoln v. City of Boston, 148 Mass. 578, 20 N. E. 329, 12 Am. St. Rep. 601, 3 L. R. A. 257, that on the day of the accident to the plaintiff cannon were fired in Boston Common, near Charles street, which rendered said street, on which plaintiff was driving, unsafe, and was a public nuisance; that the Common was owned and controlled by the city, upon which, by the mayor acting as its agent, the firing of the cannon was licensed; but the opinion of the court sustaining the demurrer to the declaration said: “Annoying and even dangerous as such firing may ,be, an adjoining householder could not maintain an action against the city, and the plaintiff stands no better than an adjoining owner would.”
[203]*203To the same effect is the opinion of the Supreme Court of Wisconsin in Hubbell v. City of Virogua, 67 Wis. 343, 30 N. W. 847, 58 Am. Rep.
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Cardwell, J.,
delivered the opinion of the court.
The declaration in this action, brought by Mrs. Mollie P. Clark against the city of Radford, consists of five counts, which, after setting out that the defendant is a municipal corporation chartered by the legislature of Virginia, and charged with the duty of keeping its streets in a reasonably safe condition for use of the public; alleges that said defendant city was, on the * * * day of September, 1909, through its servants and agents, blasting with powder and other explosive material in, and getting out rock for use on its streets from, a rock quarry, at a distance of sixty-five feet from a street of the city known as Grove avenue, and that while the city was so engaged in blasting, on the date named, the plaintiff was driving along said street and within seventy-five feet of the point of the blasting, and without knowledge thereof on her part, when a succession of blasts were set off, frightening her horse, causing it to become unmanageable and suddenly to wheel around in the street, throwing plaintiff violently upon the ground, whereby she was seriously injured and her buggy and harness destroyed.
The neglect of the city to perform its duty of keeping its streets, and particularly Grove avenue, in reasonably safe condition for the use 'of travelers thereon is alleged in the five counts in plaintiff’s declaration, as follows: The first count charges a failure to give warning of its intention to put off the blasts; the second charges a failure on the part of the city to cover its blasts;' the third charges the employment by the city of unskillful, careless, and negligent servants; the fourth merely alleges damages to the buggy and harness; and the fifth combines the negligence alleged in the first, second, and third counts, and practically charges negligence on the part of the city in maintaining or failing to prevent a nuisance, resulting in injury to the plaintiff.
The defendant city demurred, in writing, to the declaration and each count thereof, which demurrer was by the court overruled, whereupon the plea of not guilty was entered and issue joined; and at a subsequent term of the court a trial by jury was had, resulting in a verdict and judgment against the city for $500 damages in favor of the plaintiff, with interest and costs, to which judgment this writ of error was awarded.
[201]*201Of the eight assignments .of error, we find it necessary to consider only the first, which is to the ruling of the court upon the demurrer to the declaration.
“In order to render a municipal corporation liable in damages for the torts of its agents and employees, it is necessary, among other things, that the injury complained of be caused by or result from an act done in the exercise of some power conferred upon it by its charter or other positive enactment.” Duncan v. City of Lynchburg, 2 Va. Dec. 700, 34 S. E. 964, 48 L. R. A. 331; Donable’s Adm’r v. Town of Harrisonburg, 104 Va. 533, 52 S. E. 174, 113 Am. St. Rep. 1056, 2 L. R. A. (N. G.) 910, and authorities cited in those cases.
In the first of the cases just cited the opinion by Buchanan, J'., defines what powers, under the settled law, a municipal corporation can exercise, and none other, and it was there held that the city of Lynchburg, either under its charter provisions or the general law relating to such corporations, had no power or authority to create and maintain a nuisance resulting from the operation of a rock quarry outside of the city’s limits, although the rock quarried was for use in the construction and maintenance of roads which the city was authorized to construct and maintain, the nuisance complained of having been created and continued by the agents or employees of the city while engaged in a work which was without its corporate powers.
In Donable v. Harrisonburg, supra, the injury sued for resulted from the operation of a rock quarry outside of the corporate limits of the town, the stone gotten out to be for use upon the streets of the town; but it was there also held that there could be no recovery for the injury, because the operation of the rock quarry was ultra vires, for the reasons (1) that neither the charter nor the general law gave the town authority to operate a rock quarry, and (2) because the operation of the quarry was carried on outside of the corporate limits.
It has been repeated in the authorities that it might be convenient and even profitable for a municipal corporation, in order to perform certain duties imposed upon it as such corporation, to own and operate a rock quarry or other like undertakings, yet it has no power to do so unless in express words conferred in its [202]*202charter, or necessarily or fairly implied in or incidental to the powers expressly granted.
In this case, as in Duncan v. Lynchburg and Donable v. Harrisonburg, supra, to operate a rock quarry was neither necessary, fairly implied in, nor incident to the duty of the city of keeping its streets in a reasonably safe condition, nor essential to the declared objects and purposes of the corporation. We fail to see how a different rule of law is to be applied where the injury sued for resulted from an unauthorized act of a municipality, done within its corporate limits, from that applied by this and other-courts, as well as sanctioned by the ablest law writers, to cases in which the tort was committed outside of the corporate limits, for the tort committed either in the one or the other case flows from an ultra vires act.
Neither the charter of plaintiff in error, city of Radford, nor the general laws of the State, authorize the operation, either within or without its corporate limits, of a rock quarry.
It is contended for defendant in error that, although there is no allegation or complaint made in her declaration that the street on which she received her injuries was unsafe by any defect therein, she is nevertheless entitled to recover for her injuries because the street was made unsafe by the operation of the rock quarry located sixty-five feet therefrom.
The authorities very generally hold that noises outside of the limits of the highway, amounting to a public nuisance, are not a defect in the highway.
The allegation was made in the case of Lincoln v. City of Boston, 148 Mass. 578, 20 N. E. 329, 12 Am. St. Rep. 601, 3 L. R. A. 257, that on the day of the accident to the plaintiff cannon were fired in Boston Common, near Charles street, which rendered said street, on which plaintiff was driving, unsafe, and was a public nuisance; that the Common was owned and controlled by the city, upon which, by the mayor acting as its agent, the firing of the cannon was licensed; but the opinion of the court sustaining the demurrer to the declaration said: “Annoying and even dangerous as such firing may ,be, an adjoining householder could not maintain an action against the city, and the plaintiff stands no better than an adjoining owner would.”
[203]*203To the same effect is the opinion of the Supreme Court of Wisconsin in Hubbell v. City of Virogua, 67 Wis. 343, 30 N. W. 847, 58 Am. Rep. 866, where the action was to recover damages for an injury received while passing along one of the streets of the city, caused by a ball of a gun fired from within a shooting-gallery adjoining the sidewalk, but not within the boundaries of the street or sidewalk, the declaration charging that the operating of the shooting gallery, which was licensed by the city, was an obstruction to the free and safe travel of the public on and along a street. In the opinion of the court, holding the city not liable, it is said: “The shooting gallery was neither in the street nor within the boundaries of the sidewalk, but outside of the same, upon private property, and no more obstructed the sidewalk than any other building adjoining such walk.”
In the case just cited, as in the case before us, the contention was made that the city was hable because it knowingly permitted a public nuisance to exist in the city adjacent to a public street, which endangered persons traveling upon the street; but with respect to this contention the court’s opinion says: “An action will not lie against a municipal corporation for not suppressing a public nuisance within the municipality when such nuisance is not created nor maintained by the expressed authority of the municipality, and when such public nuisance is not the result of some act done, or neglected to be done, in the performance of a duty imposed upon the municipality by law, such as repair of streets, constructing sewers, water, or other public works, the municipal corporation is not liable for injuries caused to persons or property of the citizens by the criminal acts of individuals, unless made liable by statute.”
The further contention of the learned counsel in this case, that plaintiff in error is liable “for maintaining and not preventing a nuisance, resulting in injury to plaintiff,” is equally without merit. Leaving out of view the fact that there is no allegation in the declaration, or in any count thereof, that plaintiff in error had knowledge, actual or constructive, of the unsafe condition of its streets, the operation or control of a rock quarry and blasting therein, situated sixty-five feet or more from the street upon which defendant in error received her injuries, was not a positive [204]*204or ministerial duty, but a' governmental, legislative, and discretionary duty, for which the city (plaintiff in error) cannot be held liable. Jones v. Williamsburg, 97 Va. 722, 34 S. E. 833, 47 L. R. A. 294, and authorities cited.
Conceding that the operation of the rock quarry complained •of in this case was a nuisance, plaintiff in error created it without power or authority conferred upon it by its charter or other positive enactment, and it follows that it could not be held liable for not preventing the nuisance, since the alleged nuisance (the rock quarry) was sixty-five feet or more from the street, and not ■connected in any way with the physical construction of the street.
An examination of the cases cited for defendant in error dis•closes that they all practically deal with the question of a nuisance per se, such as the obstruction of the street itself by the erection of objects therein, as in City of Richmond v. Smith, 101 Va. 161, 43 S. E. 345, and in like cases, or the carrying on of a dangerous business that no amount of care, reasonable foresight, or prudence could have safeguarded against, as were the facts appearing in Wilson v. Phœnix Power Co., 40 W. Va. 413, 21 S. E. 1026, 52 Am. St. Rep. 890. Neither those cases, nor the line of cases to which they respectively belong, apply to the facts alleged in the declaration in this case.
The authorities cited above hold (1) that a city is not liable for its failure to pass ordinances prohibiting bicycle riding upon sidewalks or coasting upon its streets (Jones v. Williamsburg, supra), or (2) the firing of cannon near a street, or (3) the firing of a gun in a shooting gallery licensed by the city to operate .adjacent to and outside of a street, resulting in injury to a traveler upon the street; and it follows, necessarily, that a city cannot be held liable for its failure to pass an ordinance to prevent or •safeguard the firing of blasts in a rock quarry sixty-five feet or more from its streets and upon private property. See also Farrell v. Inhabitants, &c., 69 Me. 72, and cases cited.
For these reasons we are of opinion that the demurrer to the declaration and each count thereof should have been sustained, and in view of the fact that it is to be presumed that defendant in error has made the strongest presentation of her case which the facts permit, and that it could not be bettered if leave were [205]*205given to amend, this court, entering such judgment as the circuit court ought to have rendered, will sustain the demurrer and. enter a final judgment for plaintiff in error.