50 N.J.L. 235 | N.J. | 1888
The opinion of the court was delivered by
The form of the plea which has been demurred to will be considered briefly in the sequel,, but for the present it will be taken to present, in a sufficient manner, the facts on which the defendant, in this part of the procedure, has based its defence. That defence, stripped of all verbosity, is that by force of its franchises derived from the public grant it has built its road and run its trains, carrying merchandise and freight, near to the lands of the plaintiff, doing the plaintiff no more damage than that which necessarily results from the transaction of such acts and business. ‘ Its position is that for such incidental and unavoidable damage it is not responsible. The plaintiff occupies the' opposite ground, claiming that with respect to private property a railroad is, per se, a nuisance whenever it throws a detriment such as would be actionable at common law on such-property.
That this proposition, on which the plaintiff’s case rests, is-a most momentous one is at once apparent. If it should be-sustained, an illimitable field of litigation would be opened. If a railroad, by the necessary concomitants of its use, is an actionable nuisance with respect to the plaintiff’s property, so-it must be as to all other property in its vicinity! It is not
Nor is this susceptibility to be sued on all sides the only or ■even the worst consequence of the theory in question. For if these rights of action exist, it follows, necessarily, that each ■of the persons in whom they are vested can prevent the continuance of the wrong out of which such rights of action arise. If this plaintiff should recover two or three verdicts against the defendant because of the damage that is inseparable from the running of its trains, there is plainly no ground on which the Chancellor could refuse to enjoin a continuance of the nuisance. Nor does there appear to be any relief from such a consequence; the aggrieved land-owner would be the master of the situation, for there is no law by force of which the company could take his land in invitum, or compel him to have his damages assessed once for all. ■ In short, the plaintiff’s claim involves the assertion that he can put a stop to the business of the defendant at the point in question.
The process of reasoning which is used in support of the plaintiff’s claim has not been overlooked. It is said that- the plaintiff’s property has been damnified, and that as the law -declares that whenever there is a wrong there is a remedy, the legislature itself cannot deprive 'him of his right to redress. But this course of argument contains in it the fallacy that the general rules of law are universal, like rules of logic. But law is a practical science, and almost all its general principles, however wide their application may seem to be, have, on all sides, their reasonable limitations. Ingenuity is ever apt to run them to extremes, and it was this too subtle— •“ nimis eallida ” — interpretation of legal rules that led Cicero to the declaration, “ Summum, jus, sirnima injuria.” Therefore, if the maxim asserting the universality of the redress provided by the law for wrongs would, by its terms, extend to the damage sustained by the plaintiff, in its practical application, it would be kept within expedient bounds. But in truth, to take this maxim as the rule in the present case is to assume its fundamental term — that is, to presuppose that a wrong was committed by the mere act of running these trains.
This latter contention must, I think, be sustained. The legislative power is amply competent for such a purpose, and it is obvious that it has put forth such power. It is a radical error to regard these corporations as simply private. They have a public as well as a private aspect, and it is on this account that the immunity in question belongs to them. That they possess, in some degree, the nature of a public corporation cannot, and will not, be denied, for they could not otherwise acquire a foot of land for their roadway in this state by condemnation. The constitution prohibits the taking of private property for any other than a public purpose, so that the concession that a railroad company can compel the surrender of the land necessary for its purpose is an admission that such purpose is a public one, and the running of’ trains is as much a part of such purpose as the laying of the road bed is. It would seem quite irrational to say that the making of the track is an act done so far in- behalf of the community that the eminent domesne of the state may be resorted to for its furtherance; but that the running of trains upon such track is a purely private affair, in which the people at large have no interest. These roads, in view of their effect upon social and commercial interests, are of vastly more importance than are most of the public highways, and it is on account of this transcendent usefulness that they, to a large extent, have been and must be regarded as public agencies.
Looking at them in this light, it is but following the ordinary path to declare that they are not responsible for those incidental damages that result from the proper exercise of their functions. This is the settled rule. The legislature may authorize the altering the grade of a city street; such act may occasion immense loss to the owners of the abutting property, and such loss is damnum absque injuria, the reason being that the improvement is a matter of public concern, and that each individual member of the community, while he is
In support of the contrary view, the counsel of the plaintiff relies on two cases, viz.: Pennsylvania R. R. Co. v. Angel, 14 Stew. Eq. 316, and B. & P. R. R. Co. v. Fifth Baptist Church, 108 U. S. 328. Neither of these decisions is in point, and the principles of law declared in the latter is directly adverse to the proposition laid as the basis of this suit. The former of these precedents presented to the court the naked proposition whether the railroad company, the defendant in the proceeding, should be restrained from doing certain acts which were obviously ultra vires. The court found as a fact that the defendant was doing continuously, to the detriment of the complainant, that which was entirely unauthorized by its charter; and the case did not call for any expression of opinion on the part of the tribunal as to the effect of incidental damage done by the road in the necessary operations of its business. The case has no value as a precedent beyond this.
The decision of the Supreme Court of the United States just referred to rested on the same basis. A railroad company had located its repair shop and engine-house next to a church, to which it was a nuisance by reason of the noises occasioned by the business carried on at the place. The court declared that the company could not justify the maintenance' of such a nuisance. The propriety of this result seems unquestionable. The railroad company, in selecting a place for repair shops, acted altogether in its private capacity. Such
It is apparent that the inconveniences and annoyances here mentioned were such results from the running of the cars in the public streets that would have been deemed actionable wrongs but for the public character of the business of which they were the necessary incidents. It is stated to be a damage (damnum), but it is absque injuria, because the cause producing it is legalized, in promotion of the general welfare.
The decisions appear mainly to agree with respect to this doctrine. They are quite numerous, and the few following are cited merely as examples: Radcliff’s Executors v. Mayor, &c., of Brooklyn, 4 Comst. 195; Chapman v. Albany and Schenectady R. R. Co., 10 Barb. 360; Grand Rapids and Ind. R. R. Co. v. Heisel, 38 Mich. 62; Struthers v. Dunkirk, 87 Penna. 282; Coby v. Owenboro R. R. Co., 10 Bush 288; Pennsylvania R. R. Co. v. Lippincott, 19 W. N. C. (Pa.) 513.
Nor does it seem that this principle is, on the whole, unjust in its operation. It is, in all probability, no more
There is but a single case in this state in which the present question has been placed directly sub judice. In Morris and Essex R. R. Co. v. City of Newark, 2 Stockt. 352, the owners of the land abutting on the street along which the railroad company had laid a track, complained that their property was incidentally injured by the running of the trains, ■but this was treated as damnum absque injuria, this being the language of the Chancellor, viz.: “ It follows further, admitting the correctness of the views expressed, that the adjacent land-owner cannot maintain an action at law for consequential damages unless he can show a negligent exercise by the company of their legal rights, because no action at law will lie for a consequential injury necessarily resulting from the exercise of a legal right under legislative authority.” And some of the New York decisions already cited were referred to in corroboration of the view thus declared.
And this for at least the third of a century has been the practical construction given by the courts of this state to the ■charters of these corporations. It has been the invariable course, so far as is known, for juries to be instructed that these companies ai’e not responsible for the results of the running of their trains, provided due care and skill be observed in the business. It has been of frequent occurrence that valuable tracts of woodland have been fired from the locomotives drawing trains, and on such occasions the judicial instruction has uniformly been that the damages so occasioned
And it was upon this principle that the cases of Hoff v. West Jersey R. R. Co., 16 Vroom 201, and Salmon v. Del., L. & W. R. R. Co., 10 Vroom 299; 9 Vroom 5, were severally-decided.
In England the same doctrine has prevailed. The distinction between the damage done by sparks escaping from a locomotive run by a company unauthorized by .charter, and when such results proceed similarly from an engine run under ■ a legislative sanction, is sharply drawn in the case of Jones v. Festiniog R. R. Co., L. R., 3 Q. B. 733, it being held that while a liability to suit arose in the former case, in the latter-that it did not.
It may be further remarked that this principle had become so prevalent and deeply rooted in the jurisprudence of this-country that it has required express legislation in some of the states to eradicate and supersede it. Grissell v. Housatonic R. R. Co., 26 Law Reg. 260; Hyman v. Boston and W. R. R. Co., 4 Cush. 288. And it is not uninstructive to note that when that legislation was being tested before the courts, the-contest was with respect to its constitutionality, which was assailed on the ground that the legislature could not deprive these corporations of that irresponsibility for consequential damages that had been impliedly given to them in their charters. In the judicial opinion relating to such controversy it is taken as an admitted datwm that the corporate bodies were originally possessed of the immunity claimed, but that it was competent for law-makers to deprive them of it.
Nor have I found any serious constitutional difficulty with respect to this question. It has not been unobserved that it is said that as the legislature cannot authorize, by force of the constitution of the state, property to be taken for public use
But this line of reasoning excludes altogether, as it appears -to me, the legislative control over the subject. As already •remarked, if the right of action cannot be taken from the ■land-owner when the injury to his property is equal to one-•half of its value, neither can this be done when it is damaged to one-twentieth part of its value, or in any other actionable -degree. To hold otherwise would be not only illogical but ’-also impracticable, for who would be able to say to what de.gree the damage must go in order to give the right of action ? .In my opinion the legislative power covers the entire field of incidental injuries. In the case cited from the English reports it was held that the burning of a hay-stack by the •engine of an unchartered company was a loss that could be redressed by action, without respect to the question whether the fire had been kept with proper care or not; and yet the -court declared, as has always been judicially declared in this state, that if such engine had been used under legislative authority such loss would have been remediless. This, it is -evident, was maintaining a legislative right to deprive a person of a right of action due to him at common law for an injury resulting in the entire destruction of his property, and this is the legal principle that has practically been enforced in •this state from the time of the existence of its first railroad up '•to the present hour. And it is this entire doctrine that must be abrogated if we say that by force of the constitution the legislature cannot exempt these companies from responsibility for those things that are the necessary concomitants of the ■use of the road. When property has been incidentally injured, tuo matter to what extent, as an unavoidable result of a public improvement, such loss has always been deemed remediless, :-and it has never been supposed that the property so injured was taken, in the constitutional sense, for the public use. All
It remains to say but a word about the form of the plea. It seems to me unobjectionable. Its inducement contains the facts essential to the defence arising out of the principles just declared. It sets out the franchise to run the road and alleges care and skill, and that no unnecessary damage was-done. If any avoidable damage was done, the proper course-is for the plaintiff to tender an issue upon that matter in his. replication. ■ This is the usual course.
I think the demurrer should be overruled.