108 Ga. 671 | Ga. | 1899
After this case had been regularly heard, it was ordered reargued on a question so framed as to embody the material points involved. An analysis of the evidence is, therefore,-not necessary, further than to explain the situation of the property and the claim of the plaintiff. Bay street in the city of Augusta is laid along the southern bank of the Savannah river. Cumming and McCartan streets run south from it, at right angles. The railroad runs down Bay, past Cumming street; by a spur-track it crosses a lot, owned by the company, at the corner of Bay and McCartan streets, and thence runs across McCartan street into its freight-yard. Plaintiff’s lot does not touch Bay or McCartan streets, but abuts on Cumming street, the Goodrich lot intervening between her premises and Bay street, along which the track is laid. Plaintiff’s lot corners on land belonging to the company, upon which one track has already been laid, and the plats in evidence show that other tracks are to be laid thereon in the future. The lot with improvements cost $3,500, and was returned for taxes at $2,500, before and after the road was built. After the road was in operation, plaintiff demanded $5,000 as the price at which she would sell the property to the company. In spite of this demand and valuation the witnesses varied in their estimate of damages from 10 to 60 per cent, on the original cost; all of them stating that in their opinion the depreciation in value was caused mainly, if not exclusively, by the movement of cars in the freight-yard on the square across McCartan street, and distant some two hundred feet from plaintiff’s lot. Petitioner also claims damages for laying the track and operating the cars in Bay street; but there was absolutely no evidence that she ever used Bay street, or that her means of ingress and egress had been interfered with- in the slightest degree. Plaintiff’s husband testified that he “noticed cracks, which he considered the result of vibrations,” but this was the only allusion thereto, and no evidence was introduced as to the amount of damage occasioned by these cracks, or by any other one item of damage relied on by the plaintiff. Had she been entitled to recover for any specific act, it would have been impossible for the jury to have measured the amount or to have rendered a proper
In a popular sense, the word “damage” does frequently mean depreciation in value, whether such depreciation is caused by a wrongful or a lawful act; but in statutes or other legal instruments giving compensation for “damages” the word always refers to some actionable wrong — some loss, injury, or harm which results from the unlawful act, omission, or negligence of another. In this sense, and as a well-defined law term, it was used in the constitution to give the owner of private property compensation for the actionable wrong whereby his property had been damnified, but it did not give him compensation for depreciation in value • caused by any legal act ; since in law such an act was innocent, and therefore harmless, or, if not actually harmless, “damnum absque injuria.” There is nothing in the language of the constitution, or in the debates or in the proceedings of the convention, which shows any intent to enlarge its definition, or to make it mean more than it had always meant as a-law term. Nor was this sentence framed with a
The. elaboration of this point is necessary, as the plaintiff insists that the use of the word “damaged” in the constitution gives her a new right, a cause of action where none would
The Missouri constitution provides for payment where property is taken or damaged. Rude v. St. Louis, 98 Mo. (cited in the Peel case), holds that by the use of the word “damage” the constitutional convention expressed an “intention to require compensation in all cases where, but for some legislative enactment, an action would lie at common law.” A New Jersey statute authorized the building of a bridge, upon payment of damages to such owners of bridges as might be injured. The court says: “These compensation' clauses do not create any new right, their purpose being simply to preserve the common-law right of the person injured. If a railroad does an act injurious to another, which at common law would not be actionable, such person so injuriously affected can not claim redress by force of the clause under consideration.” Columbia &c. Co. v. Geisse, 35 N. J. L. 558, following the English cases. In Jordan v. Benwood, 41 W. Va. 312, citing and following Sikes v. Albany, 94 Ga. 30, the court says: “The provision of the constitution, that private property shall not be taken or damaged for public use without just compensation, does not render
According to the record, the defepdant has not done any wrongful or unlawful act; it took no property; it invaded no right; it obstructed no way; it interfered with no easement or appurtenance, remote or close at hand. The diminution in value was caused by the lawful operation of defendant’s cars on its own private property. A depreciation similar in kind, possibly equal in degree, might have been caused if police barracks or a jail had been erected in the near vicinity; and yet, according to the Pause case, this would have been damnum absque injuria. If a great manufacturing plant had been erected on the adjoining lot, the market value of plaintiff’s house might have been greatly injured, no matter how silent the operations of the mill. Properly conducted, decently appointed, and orderly managed stores, shops, factories, and business houses, erected in close proximity to residential quarters, frequently cause great depreciation in values; in the popular sense they cause damage, but in such cases the annoyances, the inconveniences occasioning the loss in value, are not actionable, because they arise from lawful uses. The owners of these establishments are -as much entitled to the use and enjoyment of their property as is the owner of the residence property reduced in value by their presence. The first occupier of land does not acquire the right to prevent his neighbor from erecting walls, digging excavations, erecting buildings, or engaging in manufacturing or mercantile business thereon, no matter how seriously such acts many depreciate the market price of adjoining property. If the acts complained of do not
These conclusions are fully sustained by decisions in Iowa, under a statute requiring payment for “injury to property abutting on the street”: Morgan v. DesMoines, 64 Iowa, 589; in Gilbert v. Greeley R. R., 13 Colo. 501, where the constitution required payment for damages; in Minnesota, in the Rochelle case construing the word “damages”: 32 Minn. 201; in Massachusetts, where the statute required payment for “dam
Whilst in Hammersmith v. Brand the plaintiff was denied damage for noise and vibration, occasioned, without negligence, by the passing of trains over the railway, for the construction of which no part of the land was taken; and while in Glasgow R. R. v. Hunter (L. R., 2 H. L.) compensation for noise and smoke was denied for the same reason, the result would have been different if there had been a physical interference or if the land or some right appurtenant had been invaded for railway purposes. Duke of Buccleuch v. Met. Works, L. R., 3 Ex. 306. And by the case of Ricket v. Met. R. Co., 2 H. L. 175, approved and followed in Peel’s case, 85 Ga. 141, the rule was finally settled that the injury must affect some right held with regard to the property, and personal inconvenience was not a sufficient basis for compensation. And in the Rude case, supra, under the Missouri constitution, which uses the word “damage,” it is said, “There must be some physical disturbancé of a right, . . to entitle the property-holder to recover.” The Georgia cases are in perfect harmony with these authorities, and distinctly rule the question involved in this case. In fact it would be necessary for this court to overrule the Pause and Peel cases in order to reach the conclusion that the plaintiff could recover. And it will be found that in every decision by this court, where a plaintiff was held entitled to recover for-damages occasioned by works for public use, there was always some physical interference with an easement, right of way, obstruction of the street near the premises, or some direct invasion of an appurtenance connected with the land. And in the many cases from other States, where the effect of smoke, noise, and cinders was considered, it will be found that the suit was by the owner of abutting property which had been
In the Elevated Railroad cases, damages from smoke and noise were allowed to abutting property owners. But the structures in the street physically invaded the owner’s easement of light and air, as well as interfered with his means of access to his premises. But in no case has the owner of property on a cross street or a parallel street, no matter how close to the Elevated road, been held entitled to recover, so far as we have found. And yet it is' almost certain, as a business.proposition, that persons owning property abutting on cross streets, have found their property depreciated in value as a result of the
Our general condemnation law, as found in the Civil Code, also shows that the damages both direct and consequential, which ai'e recoverable, are those arising from the construction of the works, from some visible and physical interference with a specific piece of property, or with some specific right or use connected therewith and capable of exact description. For the company is required to notify the owner what property or easement or franchise it proposes to take or damage. Civil Code, § 4658. The contention of the plaintiff would lead to the conclusion that every one within the circle affected by noise or. smoke was entitled to notice, though it would be impossible to say how far that circle might extend before the road was-
We understand it to be conceded that, according to our own cases and the weight of authority, there must be some physical interference with property or with property rights, in order to recover. But it is claimed that noise and smoke amount to such physical invasion. If so, a recovery may be had for slight noises or for insignificant particles of smoke. True, the damages in such cases may be only one cent; but, inasmuch as no one has the right to physically invade the property of another, there can always be some recovery, no matter how insignificant or harmless the invasion may be. For a harmless but unlawful invasion in trespassing upon land by walking across a field a plaintiff could always recover at least nominal damages. It is an unlawful invasion; and if noise and smoke amount to a physical invasion, a plaintiff would have the same right to recover for the nominal damages occasioned thereby. Yet we apprehend that no one would claim there could be a recovery for such physical invasions by harmless noise and barely perceptible smoke; and for the reason that noise and smoke do not physically invade a right of property. If, then, the liability for damages caused by smoke and noise can not be based upon the theory of a physical invasion, it must be governed by the law of nuisance. ' And many and conclusive authorities may be cited to establish that a plaintiff can recover damages caused by noise and smoke sufficient in volume to amount to a nuisance; but noise and smoke per se give no cause of action. As noise and smoke affect the eye, ear, or th& sense of smell, they would seem naturally to be in-
If, then, a recovery is dependent upon proof of the existence of noise and smoke sufficient to create a nuisance, the law applicable to nuisances must be enforced. While the State primarily owns the highway and can authorize the use thereof by railroads, and thereby legalize what would else be a nuisance in the streets, many courts have doubted whether any charter could legalize a nuisance which damages private property. 108 U. S. 332; 105 Ga. 45; 93 Ga. 561. And where a party is convicted of maintaining a nuisance, the judgment may direct its abatement: Vason v. S. C. R. R., 42 Ga. 637; and the same may often be .done in a suit for damages or proceedings for injunction: Wood’s Nuisances, 876; Macon v. Harris, 75 Ga. 772 (11). In fact the law always contemplates that a nuisance is to be abated. The payment of damages is generally a mere solatium for past injuries, not an authority to continue the wrong; and often “persons who come to the nuisance” are entitled to damages and sometimes to an injunction: Central R. R. v. English, 73 Ga. 366; 16 Am. & Eng. Enc. L. 934. In many cases neither prescription nor the statute of limitations affords protection to the party maintaining the nuisance: City of Augusta v. Lombard 101 Ga. 727. We do not say that any one maintains these views; but if a railroad is a nuisance, we would be logically driven to apply to such cases the law of nuisance, and on the theory that nuisances can not be legalized the judgment would not- only include payment for past damages but provide for an abatement. The courts w'ould have to enforce the principle that for successive nuisances there can be
This line of reasoning is fully borne out by case of Ruff v. Phillips, 50 Ga. 133, in which the court goes farther even than we might be personally willing to follow. A similar line of reasoning was adopted in an earlier case in this court, where, speaking on an application to enjoin the building of a steam planing-mill, Chief Justice Lumpkin said that it would not be a nuisance. “The only sense it will offend is that of hearing. And we know of no sound, however discordant, that may not, by habit, be converted into a lullaby, except the braying of an ass or the tongue of a scold. '. . All persons purchase town lots in view of the possible purposes to which they may be appropriated. And if it be true that the risk from exposure Avill increase the insurance . . , it can not be denied that it will be more than counterbalanced by the enhanced value of property, produced by the prosperity of the city, occasioned by these establishments. It is suicidal to oppose them. There is too much that is fanciful and conjectural in the evils and dangers which are menaced. But be this as it may, as well attempt to stop up the mouth of Vesuvius as to arrest the application of steam to machinery at this day.” Mygatt v. Goetchins, 20 Ga. 358. Other cases might be cited to the same effect, but none put the argument stronger than the trial judge in Bell v. O. & P. R. R., 25 Pa. St. 175. The affirmance was by a divided court, and it may not, therefore, be an authoritative decision, but the opinion can stand on the force and clearness of its reasoning. The application was to enjoin an unlawful invasion of plaintiff’s right of commons, and to abate a public and private nuisance caused by the maintenance of freight-yards and the storage and moving of cars therein. “ It does not appear that defendant creates any more noise or confusion than is usual or customary, or than is necessary and unavoidable in carrying on the business of their road. To deny them the use of their road would be, in effect, to exclude all railroads from our cities, . . to stop all machinery of every
While holding that a lawfully constructed and lawfully operated railroad is not a nuisance, we are very far from holding that it may not be so operated in streets or on its private property as to become a nuisance. Railroad companies may use defective engines which scatter unnecessary quantities of sparks, cinders, and smoke; at improper times and in an unnecessary manner they may sound their whistles and blow off steam; they may maintain cattle-yards in filthy conditions; they may maintain coal-chutes and roundhouses at improper places, and operate them so carelessly and noisily as to create a nuisance. But when they do so they will get no protection from their charter; for the legislature does not legalize nuisances, whether they are maintained by manufacturing companies, railroads, municipalities, or private individuals. It has been suggested that under our ruling in this case a railroad might so con
The marked difference between the lawful and unlawful use of railroad property, and the different consequences flowing therefrom, is discussed in Fifth Baptist Church v. B. & P. R. R., 108 U. S. 317, an instructive and weighty authority. There, the company’s roundhouse was located close to the church building; in this roundhouse many engines were housed, cleaned, fired up, steam blown off — the act of blowing off steam frequently occupying from five to. fifteen minutes; hammering noises were made in the workshop, and other wrongs committed, including the building of sixteen smokestacks lower than the church windows and so placed that the smoke therefrom poured directly into the audience room. “ The engine-house and repair shops as they were used by the railroad company were a nuisance in every sense of the term, and the liability of the company to respond for damages was not affected by its corporate character.” The court thereupon laid down and applied the law of nuisance, wholly independent of the question of “taking or damaging property for public use.” But it distinctly recognized that for the usual and necessary noises occasioned by the operation of the railroad as such, in the per
But it is said that these views can only be correct as applied to chartered companies; that an unincorporated railroad i$ a nuisance per se, and the owner thereof liable for all damages which such nuisance occasions; and therefore the same liability attaches to a chartered railroad, inasmuch as the constitution preserves the common-law right of action and makes the company liable to the same extent and for the same acts as a private individual would be. And 1 Elliott on Railroads, § 1,
It certainly is not unlawful for a private citizen to own and operate a railway on his own land. Pierce on Railroads, 2; 1 Rorer on R. R. 8. And we have found no case holding that a railroad on private property is a nuisance per se; on the contrary, a number of cases expressly hold that they are not nuisances per se. “ Railroads in cities and towns can not with propriety be called nuisances. They are decided not to be such in numerous cases both by English and American courts.” Geiger v. Filor, 8 Fla. 332, cited in 17 Am. & Eng. R. R. Cases, 186. To the same effect, Bell v. O. & P. R. R., 25 Pa. St. 161; Heitz v. L. I. R. R., 13 Barb. 646; Drake v. Hudson R. R., 7 Barb. 508, and other cases cited in 6 Rap. & Mack, R. R. Digest, 886 (2). Several Georgia cases afford some intimations to the same effect, though the exact question was not involved. Atlanta R. R. v. Kimberly, 87 Ga. 169; Hanbury v. Woodward, 98 Ga. 54; E. T., V. & Ga. R. R. v. Boardman, 96 Ga. 359; Coast Line v. Cohen, 50 Ga. 451. To which may be added the Marchant case, which in effect really decides the exact point, for the court there said: “This brings us to the question whether in case a natural person were the owner of this road, operating it in the manner the defendant company is doing, he would be responsible to the plaintiff in damages. We answer this question in the negative. He would not be responsible, for the reason that he would have a right to the reasonable use and enjoyment of his property ; and if in such use, without negligence or malice, a loss unavoidably falls on his neighbor, he is not liable in damages therefor. . . If the construction contended for be correct, then we have a liability imposed upon corporations, in the operation of their works, which is not now, and never has been, imposed upon individuals. No principle of law is better settled than that a man has a right to the lawful use and enjoyment of his property, and that if in
Railroads not only seek centers of large cities for convenience of the public and their own profit, but they are left without option in the matter. Their route and the width of the right of way are fixed by charter, and depots and depot yards must necessarily be contiguous to the main line. So that it is impossible for the company to act on the suggestion made on the authority of Baptist Church v. B. & P. R. R., 108 U. S., where the court, after deciding that a roundhouse was a nuisance, said, “ If the nuisance could not be abated, the plant must be located elsewhere.” ‘Changing the location of a roundhouse might be feasible, but changing the main line and adjuncts to the main line stand on a different footing. Location of the route by
We have thus, at considerable length, given the reasons for our decision; and, on account of the importance of the question, instead of giving mere citations, have departed from our usual rule and made frequent and lengthy quotations from the authorities. We can not do better than conclude with a final quotation from Carroll v. Wis. Cen. R. R., 41 N. W. Rep. 661, where, in speaking of railroads being a public necessity, the court says: “Operating them in the most skillful and careful manner causes to the public incidental inconveniences, such as noise, smoke, cinders, vibrations of the ground, inconvenience by interference with travel at crossings, and the like. One person may suffer more from these than another; for instance, one whose premises lie within one hundred feet of the railroad will feel the inconvenience in a greater degree than one whose premises are at a distance of one thousand feet, and one who has to pass many times over it suffers more than one who seldom has occasion to pass it. But the difference is only in degree, not in kind. Such inconveniences are common to the public at large. If each person has a right of action for such inconveniences, it would go far towards rendering the operation of railroads practically impossible.”
While there are several grounds in the motion for new trial, the foregoing principles cover the controlling one in the case, and we deem it therefore unnecessary to discuss them. If v?e
Judgment affirmed.
After anxious and careful deliberation, Mr. Justice Lewis and myself were unable to concur in the judgment rendered by the court in this case. He has, in the opinion which follows, stated the reasons upon which our dissent is based.
The right to exercise the power of eminent domain is inherent in sovereignty, and has been very properly defined to be “the right or power of a sovereign State to appropriate private property to particular uses for the purpose of promoting the general welfare.” Lewis on Eminent Domain, §1. It embraces all cases where the property of a private individual is taken by authority of the State for the purpose of being devoted to some particular use, either by the State itself or by a corporation, public or private, or by a private citizen. It differs very materially from the exercise of the taxing power. Taxes are imposed upon some just basis of apportionment, and are exacted from individuals for their respective shares of contribution to a public burden. But when private property is taken for a public purpose by an exercise of the power of eminent domain, it is not appropriated as the owner’s share of contribution to a public burden, but as so much over and above his share. To forcibly seize the property of an individual without compensation would be manifestly unjust and opjiressive, and hence it is that all just governments make provision for compensation of the owner of private property that is taken for the benefit of the public. Corporations, as well as individuals, usually apply for this power of eminent domain for their profit. The State grants the power in consideration of the convenience and advantage to the public. It would indeed be a very unwise and unjust government that would compel an individual, without his consent, to surrender and sacrifice his property in order to promote either the interests of the
The evident purpose of our fundamental law on this subject, as it now stands, is to compel those — whether corporations, companies or individuals — who exercise the high power of em
It is a great mistake, therefore, to suppose that one can do what he pleases with property he absolutely owns, and accordingly has. a legal right to erect thereon any structure he sees fit for the purpose of carrying on a legitimate and useful trade or business. Every man holds his property subject to that universal rule: “Sic utere tuo ut alienum non losdas.” No one, for instance, has a right to erect upon his land a manufactur
The testimony introduced by the plaintiff showed that the noise caused by the movement of trains was almost unbearable to the occupants of her premises. So great was it that it sometimes stopped conversation. Furthermore, “the movement of the cars had a perceptible effect on the house.” In this connection the plaintiff’s husband testified.: “We feel it like the effect of an earthquake. It makes the house oscillate. This occurs both day and night. I ‘noticed cracks in the walls of my house, which I consider the result of this oscillation.” This witness, in speaking of the switching, backwards and forwards, of cars on the tracks running past the plaintiff’s residence, thus graphically described the situation: “That shifting is a kind of quadrille, forward and backward; a quadrille with freight-boxes. In shifting, these engines make it almost unbearable.” Another witness testified: “ The continual jarring and noise and smoke make it very disagreeable. . . I should think Mrs. Austin’s property has been depreciated by the coming of the Augusta Railway Company in its neighborhood not less than fifty per cent. . . If there was no shifting yard there, and no pulling in and out of cars, and the train merely passed along Bay street, then I would not consider the damage so great. My evidence is largely influenced by the presence of these freight-
As a general proposition, it is of course true that the owner of property has a right to do with the same as he pleases, so long as he devotes it to a legitimate purpose; but the exercise of such right should always be understood as qualified by the proviso that he does nothing which injuriously interferes with the legal rights of others. For instance, the mere location of an unsightly structure on premises adjacent to the handsome residence of a neighbor may have the practical effect of diminishing the former value of such residence; but its owner would be without any legal redress, for the simple reason that no property right of his would thereby be interfered with. One’s view might be seriously obstructed by the erection of a wall on a neighbor’s lot, built in such a manner as to greatly detract from the appearance of the former’s home and actually lessen its value as a residence, but manifestly no legal right of his would thus be invaded; and therefore it would be simply ridiculous to contend that he had any legal cause of complaint. To hold that he had a natural right to an unobstructed view over the lands of adjacent proprietors would place it in his power to decree desolation, so far as all improvements were concerned, in every direction from his residence, and as far-reaching as the natural landscape could enchant the human vision. On the other hand, as before seen, every one has a legal right to the reasonable enjoyment of his property whenever he desires -to use or occupy the same for any ordinary purpose, and any act which seriously interferes with that enjoyment, to such an extent as to produce material physical discomfort and annoyance to the owner, and which would naturally produce this effect upon one of ordinary sensibilities, will give rise to an action under the well-defined rules of the common law. We use the words “one of ordinary sensibilities” advisedly; for it does not follow that, simply because a person of fanciful or fastidious taste might be annoyed and disturbed by ordinary noises and similar agencies produced on the premises of another, legal redress will be afforded as a matter of course. To illustrate, a resident of a large and populous
The case at bar is also to be distinguished from that class of cases wherein it appears that the damages complained of are of a public nature and no more affect the individual complaining than the public at large. Not unfrequently railroad companies are sued for causing an obstruction by their tracks of a public highway, and the courts, upon inquiring into the peculiar facts of a particular case, justly reach the conclusion that the wrong complained of has no more prejudicial effect upon the .individual who makes complaint thereof than it has upon the traveling public generally, and, accordingly, the mere fact that he is the owner of realty at a greater or less distance from such obstruction, which does not interfere with the enjoyment of his property but merely annoys and interferes with him in his capacity of a citizen in the use of the street, will afford no reason for singling him out of the entire population as the proper party to enter complaint for a grievance common alike to all citizens who have occasion to use the highway. On the other hand, however, whenever it appears that an easement or other right appurtenant to the ownership of realty is interfered with by such an obstruction in a public street. — ■ as where, for instance, the natural ingress to and egrees from one’s premises have been seriously impaired, especial damage and injury does result to the owner of such property, and relief will be granted as matter of strict legal right. A distinction should likewise
Now, in the light of the present record, how can it be seriously insisted that there was no testimony authorizing the conclusion that important property rights of the plaintiff were materially affected by the operation of the defendant’s railway? Can it be urged that injuries of the nature she has sustained exist only in the imagination — that they are the result alone of a mere fanciful or fastidious taste — that a person of ordinary sensibilities would not be seriously incommoded or inconvenienced by the noise and jar of tremendous machinery, operating day and night in close proximity to his dwelling, causing it to oscillate and vibrate as though under the influence of an earthquake, until, as a result of this physical disturbance, great cracks appear in the walls of the building? It will be noted that the operation of the defendant’s road in this particular vicinity was attended with unusual noise, smoke, cinders, etc. Immediately in the rear of plaintiff’s residence, a freight-depot was ereeted, with divers tracks from different directions entering the' company’s freight-yard. Several of these tracks ran within forty feet of her house, and were in constant use, day and night, in switching cars, etc. It is quite manifest, therefore, that the noise and other disturbing agencies originated by the company in this particular locality were far greater than would ordinarily be occasioned by the usual running of trains between stations on its line of railway. In reason and justice, and in law, a railway company should be held to be under the imperative duty, when selecting a site for its freight-yards, repair-shops, etc., of paying due regard to the effect upon adjacent property. The idea is advanced in the able opinion filed in this case by the Chief Justice, that the business interests of railroads, as well as those of the 'public, require that they should seek the hearts of large and populous cities in the selection of sites for the location of their terminal facilities. The principal reason why a railway company seeks such a place for this purpose is on account of the profit which
It is not the policy of our fundamental law that the general public should enjoy any advantage or benefit whatever at the expense of a private citizen. Indeed, the framers of our constitution proclaimed that the people of Georgia were imbued with a proper sense of independence and justice, and would not demand at the hands of any individual who might elect to make his abode among them the surrender of any property to which he had just claim, without adequate compensation therefor. It therefore follows that however much the general public may desire a given benefit which involves the expense of
Another case directly in point is that of People v. Detroit White Lead Works, 82 Mich. 471. The defendants were en
We will now consider the question under discussion in the light of the law relating to the exercise of the power of eminent domain. In treating of this subject and in discussing
The question now in hand was discussed at length by the Supreme Court of the United States in Baltimore & Potomac R. R. Co. v. Fifth Baptist Church, 108 U. S. 317. In that case it appeared that the railroad company had conferred upon it by an act of Congress authority to build its line into the city of Washington along a particular route selected for that purpose. The plaintiff made complaint that the company had erected an engine-house and machine-shop upon a parcel of land immediately adjoining a church edifice belonging to the plaintiff, and had since used them in such a way as to disturb, both on the Sabbath and on other days, the congregation assembled in the .church, to interfere with religious services conducted therein, break up its Sunday-schools, and destroy the value of the building as a place of public worship. On the trial of the case it was shown that “these services were habitually interrupted and disturbed by the hammering noises made in the workshops of the company, the rumbling of its engines passing in and out of them, and the blowing off of steam; that these noises were at times so great as to prevent members of the congregation, sitting in parts of the church farthest- from the shops, from hearing what was said; . . and that in the
Another case peculiarly in point upon its facts is that of First Baptist Church v. Schenectady & Troy R. R. Co., 5 Barb. 79. There, the church claimed damages resulting from noise and the jarring produced by steam-engines and cars which disturbed and molested its congregation and had the effect of diminishing the value of its house of worship. It was held in that case that it was enough to show that the plaintiff’s property had been rendered less valuable for the purposes to which it was devoted, and it need not further appear that its value was likewise depreciated for other purposes. A ruling to the contrary was made in First Baptist Church v. Utica & Schenectady R. R. Co., 6 Barb. 313; but it is to be observed that while the decision in that case appears in a later report, it was really rendered at the May term, 1848, of the court, whereas the decision above cited from 5 Barb, was announced at the November term of that year, and overruled the decision reported in 6 Barb. In a more recent New York case, Drucke v. Manhattan Ry. Co., 106 N. Y. 157, 60 Am. Rep. 437, decided in 1887, Finch, J., in referring to the damages fioAving from the construction and operation of the defendant company’s elevated railway, said: “Smoke and gases, ashes and cinders, affect and impair the
We will now direct attention to the precise questions passed upon and rulings announced in the cases cited and relied on by the Chief Justice, in the opinion prepared by him, as supporting the views entertained by a majority of the members of this court. In Rochette v. Chicago &c. Ry. Co., 32 Minn. 201, it appeared that the defendant, in constructing its railroad, made an excavation extending across certain streets in the vicinity of the plaintiff’s premises, thereby cutting off his most convenient and usual means of access to and from his place of business in the city. It was simply held in that case that the injuries complained of were not special to the plaintiff, but the same in kind sustained by the general public in common with himself, and therefore the acts committed by the defendant, even if unlawful, would constitute a public nuisance merely, and not one entitling the plaintiff to maintain his action. Furthermore, it was decided that the acts complained of did not constitute a “taking” of the plaintiff’s property within the meaning of the constitution of Minnesota. It is to be noted, in this connection, that the constitution of that State, in the clause thereof relating to an exercise of the power of eminent domain, merely provides that just compensation shall be made for property “taken,” and does not, in addition, use the words “or damaged,” or any other terms equivalent, thereto. What has just been said with reference to the case last cited also applies to the decision in Carroll v. Wisconsin Central R. R. Co., 40 Minn. 168, 41 N. W. Rep. 661, wherein a similar ruling was announced.
In Morgan v. Des Moines & St. Louis Ry. Co., 64 Iowa, 589, an action for damages was brought against the company, under
This question was more particularly gone into in the subsequent case of Pennsylvania R. R. Co. v. Marchant, 119 Pa. St. 541, which is also especially relied on by the majority of our brethren. In construing the constitutional provision of that-State above quoted, the court in that case held expressly that-“The remedy provided by said constitutional provision, to secure just compensation by corporations for property ‘injured or destroyed,’ has relation to injuries which, though popularly termed consequential, are yet to be understood as confined to such injuries to one’s property as are actual, positive and visible, the natural and necessary results of the original construction or enlargement of its works by a corporation, and of such certain character that compensation therefor may be ascertained at the time the works are being constructed or enlarged, and paid or secured, as provided in the constitution, in advance.”' Accordingly, a majority of the court announced their conclusion to be that the defendant company, which had not taken, injured, or destroyed any of the plaintiff’s property during the course of the construction of its road, was not answerable in damages for any injuries incident and solely attributable to a subsequent operation of the road in a proper and lawful man
The constitution of the State of Missouri, like the constitution of Georgia, employs the w’ords “taken or damaged.” The case of Rude v. City of St. Louis, 93 Mo. 408, is cited in the majority opinion filed in the present case to sustain the views therein advanced. It should be observed, however, that the Missouri court merely announced the well-established rule that “A property-owner, in order to recover damages for an obstruction to a highway, must show that the damages suffered are peculiar to him, being such as are different in kind, and not merely in degree,' from those sustained by other members of the community.” And, in applying this rule to the facts of that case, the court very properly held that the plaintiff, who alleged he had been damaged by an excavation in the street some five
In Chicago v. Taylor, 125 U. S. 161, it was decided that'under the provisions of the constitution of the State of Illinois, adopted in 1870, a recovery may be had in cases “where private property has sustained a substantial injury from the making and use of an improvement that is public in its character, whether the damage be direct, as when caused by trespass or physical invasion of the property, or consequential as in a, diminution of its market value.” That case came by writ of error from the circuit court of the United States for the northern district of Illinois. There was a verdict and judgment against the city, which was affirmed by the United States Supreme Court. The official report discloses that the court had under consideration the decision in Rigney’s case, cited above. Other previous adjudications by the Illinois Supreme Court were reviewed, and express recognition was given to the new rule laid down in the Rigney case, that compensation must be made in all cases where there has been some physical disturbance of a right, public or private, which one enjoys in connection with his property, even though there has been no trespass upon or actual invasion of his premises. See page 168. It seems that counsel for the city in that case, in his argument before the reviewing court, dwelt somewhat at length upon the serious consequences which he predicted would result from enforcing the rule as laid down by the Supreme Court of Illinois. In reply to this argument, Mr. Justice Harlan, in the concluding sentence of his opinion, said: “We dismiss these several suggestions with the single observation that they can ■be addressed more properly to the people of the State in support of a.proposition to change their constitution,”
The identical question we are now considering was involved in the case of the Chicago &c. Ry. Co. v. Darke, 148 Ill. 226, 35 N. E. Rep. 750. That was a suit against a railway company to recover damages caused by the construction, maintenance,
In the constitution of the State of Nebraska is a provision like that contained-in the constitutions of Illinois and of Georgia. The Supreme Court of Nebraska, in construing the words “or damaged,” as used in the constitution of that State, held them to include all damages arising from an exercise of the right of eminent domain which caused a diminution in the value of private property. See City of Omaha v. Kramer, 25 Neb. 489, 41 N. W. Rep. 295; Railway Co. v. Hazels, 26 Neb. 364, 42 N. W. Rep. 93; Railroad Co. v. Janecek, 30 Neb. 276, 46 N. W. Rep. 478; and Jaynes v. Omaha St. Ry. Co., 53 Neb. 631, 74 N. W. Rep. 67, citing approvingly Gottschalk v. Railroad Co., 14 Neb. 550, which seems to be the parent case, wherein the court said (page 560), in speaking of the change wrought in the organic law of that State by the introduction into its new constitution of the additional words “or damaged” : “The constitutional provision therefore is, that private property shall not be taken or injuriously affected without just compensation therefor. The evident object of the amendment was to afford relief in certain cases where, under our former constitution, none could be given. It was to grant relief in cases where there was no direct injury to the real estate itself, but some physical disturbance of a right which the owner possesses in connection with his estate, by reason of which he sustains special injury in respect to such property in excess of that sustained by the public at large. To this extent the property-owner is entitled to recover. It is not necessary, to entitle a
The constitution of Kentucky also contains words equivalent in meaning to those employed in the constitution of this State. It provides for “compensation for property taken, injured, or destroyed.” Ky. Stat. (1894) §242. This identical question in reference to damages to property occasioned by discomfort of its occupants from smoke, noise, etc., of passing trains, was recently before the Court of Appeals in that State, when it was decided : “Damages may be recovered for injury to abutting property on account of annoyance and discomfort habitually suffered by the occupants from smoke, cinders, and unusual noise from trains passing over a railroad in the streets of a city.” Louisville S. R. Co. v. Hooe, 47 S. W. Rep. 621, 622. In the same case it was decided that it was competent for the jury to consider whether the personal annoyance of the occupant would conduce to a diminution of the value of the property; and in the opinion by Burnam, J., it is stated: “If, as matter of fact, the occupants of this building habitually suffer annoyance and discomfort on account of the smoke, cinders, noise, etc., from passing trains, this fact tends to diminish the value of the property.”
The constitution of Texas contains a similar provision by declaring: “No person’s property shall be taken, damaged, or destroyed, or applied to public use, without adequate compensation.” Rev. Stat. of Texas (1879), p. 2, § 17. In a recent decision by the Court of Appeals of that State, the same doctrine was announced with reference to a right of recovery against a railroad for such damages. In that case it was also ruled: “Where plaintiff was damaged by noise, dust, and smoke from a railway running along a public street, the fact that lot-owners
We find nothing in any of the decisions of this court, which are relied on by counsel for the defendant in error and cited in the majority opinion delivered in this case, at all in conflict with our views of the law and a proper application thereof to the peculiar facts here presented. The three cases mainly relied on are: Campbell v. Metropolitan St. R. R. Co., 82 Ga. 320; Peel v. Atlanta, 85 Ga. 138; and Pause v. Atlanta, 98 Ga. 92. In the first case mentioned, it was held: “Any evidence that will tend to show damage to the property would be admissible. If noise, smoke, dust, cinders, or things of' that sort, be shown to have damaged the property, they should be considered in arriving at the amount of the recovery, but if they amount merely to inconvenience or discomfort to its occupants, they are not an element of damage, and should not be so considered.” It will therefore be seen that the right to recover on account of noise, smoke, etc., whenever the effect of these agencies was to damage the property, is distinctly recognized in that case; and not a word is said in the opinion which can possibly warrant the assumption that the court intended to restrict the right of recovery to cases wherein it was shown that the premises of a private individual were physically invaded and a direct injury thereto committed, or that the term “property” was meant to include only the res or subject-matter of such person’s property rights as owner. In the Peel case, it appeared that the plaintiff brought suit against the city, alleging herself to be the owner of a lot of land, a portion of which she sold, and of which portion the city afterwards became the purchaser and opened a public street thereon adjoining the portion she retained, rendering it unsightly and depriving it of privacy, and that she had reason to fear assessments upon all three sides of her lot for street improvements, which fact reduced the value of her premises. Accordingly this court held she had no right of action, as the city had committed no act interfering with any property right she could lawfully assert. This case, therefore, has no application whatever to the facts presented by the
We are further thoroughly satisfied that the requirement in our constitution to the effect that compensation shall bo “first”, paid, before private property is either taken or damaged for public use, lends no weight whatever to the position that the framers of our organic law deliberately intended, by making use of the word quoted, to exclude compensation for all damages which were the result of the operation, merely, of a railway. Indeed, we do not feel that we can, consistently with our duty to administer justice “agreeably to the laws and constitution of this State,” arbitrarily add thereto the far-reaching proviso which any such construction of the clause under consideration imperatively necessitates. Obviously, the important
The somewhat ingenious, though unsound, argument presented by the Chief Justice in this connection may, however, be fully met by the observation that not only is it entirely practicable to measure in advance such consequential damages, but that, in every case where private property is either taken or damaged for the public welfare, all consequential damages thus arising must be so ascertained and first paid, is the positive mandate of our General Assembly. See Acts of 1894, pp. 95 et seq.; Civil Code, §§ 4658, 4674, 4675, relating to the “condemnation of private property” under the power of eminent domain. It may possibly be true that the owner of property adjacent to lands over which a railway is being constructed is frequently not in a position to know what effect the operation of the road, when completed, will have upon his premises. This would result, however, really because, not being in the company’s confidence, he would be uninformed as to the precise use, and the extent thereof, the company contemplated making of its works in the immediate vicinity. The company certainly would know how it wished and intended to use its own property in that neighborhood, and if it fairly and correctly communicated its information on the subject to a board of arbitrators who were familiar with the location, relatively to the company’s works, of the premises of an adjacent landowner, we entertain no doubt that a just and sufficiently accurate award of damages would be possible, in the event the board came to the conclusion that the injuries which must inevitably ensue from the operation of the company’s business overbalanced the benefits which the other party
We can not agree with the majority of our brethren that in the operation of its road the defendant company in the present case committed no act of which the plaintiff could legally or justly complain. If, as was clearly shown by the testimony, that operation caused the damages complained of, the defendant has been guilty of a continuous trespass in thus producing damages wfithout first making compensation therefor. That trespass consisted of an actual, physical invasion of the plaintiff’s premises by using the same as an avenue of escape for noise, smoke, and vibrations which the company generated upon its own premises, but which were not confined thereon, and could not be, because of their limited extent. Even under the purely arbitrary rule adopted by the majority of the court, that it is incumbent upon a plaintiff to show that the injury complained of produced some visible, physical effect upon the property itself, we think, under the evidence submitted in this case, that Mrs. Austin was entitled to a recovery in some amount; for, among the obvious, tangible, and strictly physical effects shown by the testimony to have been caused by the operation of the company’s road, was the cracking of the walls of the house; and furthermore, it was made to appear that her dwelling was otherwise physically disturbed, and in an almost constant state of oscillation, by the jarring produced by the defendant’s engines and cars.
The argument advanced to the effect that if suits to recover merely consequential damages were tolerated by the courts, an immense amount of litigation would thereby be invited, and there would .be endangered by speculative actions the prosper
The logical result of the conclusions reached by a majority of the court in the present case-Avould necessarily lead to a denial of any relief to an owner of private property, even though he and his family might be actually driven from their home by noises so deafening, volumes of smoke and cinders so vast, and noxious and offensive gases and odors so baleful and injurious to the health, as to render the premises uninhabitable and absolutely worthless for any purpose. Unquestionably, as has been seen, the common law would have afforded relief against