30 So. 2d 816 | La. | 1947
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This is a sequel to the case of McGee et al. v. Yazoo M. V. R. Co.
Soon after the judgment became final in that case, Mr. and Mrs. C. M. Brown, who had been among the parties plaintiff, joined by Mr. and Mrs. Frank Devoke and some 85 other property owners in this same vicinity, making substantially the same basic allegations as in the McGee case, instituted the present action against the defendant claiming damages for injury to their health and property by reason of the defendant's continued operation of these facilities in a wrongful, negligent, harmful, and unlawful manner, thereby causing the emission of a *734 continuous dense and obnoxious smoke, including gases, soot and cinders, with the consequent infiltration of this polluted atmosphere into their homes and resultant injuries to their health, comfort, and homes, the paint and screens thereof being destroyed and the wallpaper, floors, and contents of their homes being damaged, thus constituting the defendant's terminal operations a public and private nuisance. In addition, in their petition is contained the allegation that such operations are not only in violation of the mandate of this court in the McGee case, but also of Ordinance No. 283 of Bossier City, adopted in October 1941, making it unlawful for any railroad to fire any cold steam boiler, steam engine, or locomotive within the corporate limits "except inside of a roundhouse or other building equipped with a smokestack, smoke eliminator, or dispenser or other device which will prevent the issuance of dense or obnoxious smoke into the atmosphere."
The defendant, in its answer, admitted that it operates the facilities complained of, consisting of a turntable with spur tracks, as a coaling station and firing point for its western terminal almost continuously, using coal burning engines or locomotives that are refueled and fired on the property, as well as the adoption of the ordinance of Bossier City, but it generally denied all of the other allegations in the petition of the plaintiffs. Shortly after the trial of the case was begun, the defendant filed an amended answer setting up as a special defense "that *735
the granting of any recovery for damages herein would constitute a taking of defendant's property without due process of law and without adequate compensation paid, in contravention of Article
The trial judge overruled the plea of prescription on the ground that the operating cause of the injury was a continuous one, giving rise to successive damages, and that prescription could not, therefore, begin to run until the cessation of the alleged cause of the damage. Being of the opinion, also, that aside from a failure to ask for injunctive relief and differences of detail in pleading this case is indistinguishable from the McGee case, its cause of action and defenses being substantially identical, he held that the decision on the merits in the McGee case was decisive of the same issues here involved and he rendered judgment accordingly. In such judgment, with the exception of Mr. and Mrs. Brown, who were awarded damages in the McGee case, and some 10 others who were awarded special damages because they had maintained their residences in the affected zone a shorter period of time, he awarded each plaintiff $350 for mental anguish and inconvenience, *736 computed on the basis of the $250 awarded for this same injury in the McGee case plus $100 for the additional time between the decision in the McGee case in 1942 and the filing of this case in 1944; and he awarded damages for each residence affected in the sum of $300 and for each garage apartment in the sum of $150. Because of voluntary nonsuits entered on behalf of some seven plaintiffs, the awards have no application to them, nor to some three individuals who have died since the suit was instituted. In all, the awards amount to approximately $42,000. The defendant is appealing.
Since the appeal was lodged in this court, on the motion of the Illinois Central Railroad Company, showing that it has acquired the Yazoo Mississippi Valley Railroad Company, it has been substituted as the defendant.
The matter in controversy here is not without precedent for we find that the defendant's predecessor in title, the Vicksburg, Shreveport Pacific Railway Company, was ordered by this court to take active measures to prevent the spreading of smoke to an injurious extent toward the homes of the complaining parties in 1910. Tucker v. Vicksburg, S. P. R. Co.,
Aside from the fact that no injunctive relief is sought here, we think, as did the trial judge, that this case is indistinguishable from the McGee case except for *738 some details in pleading and conclude, as he did, that the evidence clearly establishes the claim of the plaintiffs that they have suffered substantial injury to their property and that their enjoyment thereof has been greatly hampered as the result of the dense smoke, soot, cinders, and fly ash dispersed by the defendant in the operation of its terminal facilities in the open, contrary to the ordinance of the City of Bossier. We do not deem it necessary to give a detailed analysis of the evidence on this phase of the case. It could but serve to unduly lengthen the opinion and obscure the issues. Suffice it to say that most of the testimony offered by the defendant is but a duplication of that offered during the trial of the McGee case.
Counsel for the defendant-appellant, however, contend that neither in common law jurisdictions nor under Louisiana law can there be any recovery without actionable negligence for injuries sustained by reason of the operation of a lawful business and that inasmuch as their facilities at Bossier City are being operated as a necessary part of the defendant's legally constituted railroad system with the most improved methods and devices known to the industry for the suppression of smoke and other noxious substances, such injuries as the plaintiffs may have suffered in this case are damna absque injuria, citing as authority the cases of Werges v. St. Louis C. N. O. R. Co., 35 La.Ann. 641; Hill v. Chicago, St. Louis N. O. R. Co., 38 La.Ann. 599; Froelicher *739
v. Oswald Ironworks,
It is the universally accepted rule of law that "The owner of property has a *740
right to conduct thereon any lawful business not per se a nuisance, as long as the business is so conducted that it will not unreasonably inconvenience a neighbor in the reasonable enjoyment of his property. But every business, however lawful, must be conducted with due regard to the rights of others, and no one has a right to erect and maintain a nuisance to the injury of his neighbor even in the pursuit of a lawful trade, or to conduct a business on his own land in such a way as will be injurious or offensive to those residing in the vicinity" (39 Am.Jur. 324, Section 43), and liability in such cases does not depend upon the question of negligence. Sections 4 and 24, pages 282 and 304. See, also, Winfield's Textbook of the Law of Tort, 2d Ed., Sections 133 and 138, pages 481 and 516; Harper on Torts, Sections 180, 181, and 182; 20 R.C.L. 381, Sections 3 and 5; 46 C.J. 663, Section 28; Camfield v. United States,
In the case of Tucker v. Vicksburg, S. P. Ry. Co., supra, it was contended, as here, that the railroad, being a quasi public corporation, smoke, cinders, and other unpleasant *741
annoyances connected therewith are consequential, unavoidable and inevitable damages to which the neighbors must submit for the public good and while the court did say it did not intend to hold contrary to that view, it pointed out that "* * * the defendant should bear in mind that grants of privileges confer no right to use in disregard of private rights," [
In the McGee case [
While in the cases relied on by the appellant there are to be found expressions that apparently support its claim, the holdings in these cases are not at variance with the universal rule of law above quoted nor do they have the effect of changing or abrogating it. Analysis will show that some of these cases are clearly inapplicable to the issues presented in this case and that the decisions in the others are not controlled by the expressions quoted from them to support the contention of the defendant.
The basic law of this state on the subject matter is to be found under the heading "Of Servitudes Imposed by Law," in Chapter 3 of Title IV of the Revised Civil Code entitled "Of Predial Servitudes or *743 Servitudes of Land," wherein it is declared: "The law imposes upon the proprietors various obligations towards one another, independent of all agreements; and those are the obligations which are prescribed in the following articles." Article 666. "Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him" (Article 667), other than inconvenience not amounting to real damage. Article 668. And "If the works or materials for any manufactory or other operation, cause an inconvenience to those in the same or in the neighboring houses, by diffusing smoke or nauseous smell, and there be no servitude established by which they are regulated, their sufferance must be determined by the rules of the police, or the customs of the place." Article 669.
Clearly, therefore, the plaintiffs' action is not one in tort, but, rather, one that springs from an obligation imposed upon property owners by the operation of law so that all may enjoy the maximum of liberty in the use and enjoyment of their respective properties.
Winfield in his Textbook of the Law of Tort traces the historical development of the law of nuisance and negligence, pointing out that while these two were formerly confused and there was "Until quite recently * * * a hybrid action of nuisance and negligence," there is now "a *744 strong judicial tendency to exercise the ghost of action upon the case for negligence from the action of nuisance." In distinguishing the two he says: "In negligence the plaintiff must prove that the defendant was under a legal duty to take care. In nuisance this is unnecessary; all that the plaintiff need show, in order to make out a claim prima facie is that he has been injured by the defendant's conduct. He starts with the presumptive rule in his favour that every man is bound so to use his own property that he does not injure his neighbor. The burden is on the defendant to establish some appropriate defense." And, as expressed in American Jurisprudence, "Nuisance and negligence are different in their nature and consequences. To render a person liable either on the theory of nuisance or negligence there must be some breach of duty on his part. But liability for negligence is based on a want of proper care, while, ordinarily, a person who creates or maintains a nuisance is liable for the resulting injury to others regardless of the degree of care or skill exercised to avoid such injury." Section 4, Page 282, Volume 39. See, also, the authorities above cited.
We are not impressed by the testimony of the defendant's experts and high railroad officials to the effect that although the defendant's terminal facilities are not enclosed in a shed or round-house, they are equipped with the most modern improvements known to the railroad industry for *745 the suppression of smoke and are operated in a most prudent manner, with the result that the smoke condition complained of has been brought to an irreducible minimum and that there would be no greater reduction of this condition even if these facilities were placed under an enclosure, for the opinions and conclusions of these witnesses in this respect are supported by neither sound logic nor satisfactory reasons.
In the McGee case we found as a fact that "The so-called smoke suppressers and fly ash suppressers now used by defendant do not prevent smoke and fly ash from invading plaintiffs' properties," observing, during the course of the opinion, that "While undoubtedly a round house building would protect the employees of the railroad company from the effect of cold, heat or rain, it would seem to be clear that such a building would also serve, to some extent at least, to prevent the spread of the smoke and soot emitted from locomotives fueled and refueled in the building," and, further, that "viewing the matter from a common sense standpoint * * * a smoke eliminator attached to a tall central smokestack would further prevent the spread of smoke or soot from locomotives serviced in the roundhouse."
As conditions exist now, the substances emitted by the defendant's operations are shifted unimpeded in condensed volumes by the winds toward the homes of the plaintiffs who live in the immediate vicinity. It stands to reason that a roundhouse equipped *746 with a smoke eliminator attached to a tall central smokestack would tend to diffuse and spread those substances not eliminated more evenly over a much larger area with the result that a smaller portion would reach the several properties in the area. Such amounts as were not thus eliminated or spread out would be more in the nature of those damages that, instead of being substantial, are consequential, unavoidable, and remote and, therefore, damna absque injuria, within the meaning and contemplation of the rule of law, to be submitted to by the community as a whole for the common good.
Moreover, aside from this common sense point of view, we think it is demonstrated by the testimony of the defendant's own experts, despite their efforts to show roundhouses and sheds are for the exclusive protection of the locomotives and employees from the weather, that a conclusion may be fairly drawn from the evidence as a whole that the enclosure of such facilities is also to protect the adjacent property owners from the damaging effects of the smoke and other obnoxious substances emanating from the operation of the locomotives at the railroad terminals, for these facilities are generally so enclosed. To illustrate, the assistant to the vice-president and general manager of the operating department of the defendant, whose duties include the supervision of all switching operations in terminals and the distribution of locomotives, and who also supervised *747 the installations made at the Bossier terminal for the suppression of smoke, testified that although the Illinois Central System operates in 14 states, covers approximately 7,000 miles, and has approximately 53 terminals that are under his supervision, they "have had more complaints from Bossier City than we have had in the whole United States; that is all of the states that the Illinois Central runs through." He said a lot of the round-houses throughout the south do not have any sheds, but he did not name any place where this condition exists. On re-direct examination he intimated a number of the defendant's terminals operate without the benefit of a shed, but he named only one place, a town in Illinois of approximately the same size as Bossier City, where such is the case, and then he did not describe the locality around this facility or say whether it is located in a populous part of the city or on its outskirts.
Under these circumstances we are unable to differentiate this case from the McGee case from either a legal or factual standpoint and conclude that the terminal facilities as operated by the defendant in Bossier City during the time involved in this case constituted a nuisance and that it is, consequently, liable for all damages resulting therefrom.
In support of its contention that allowing damages in this case would be tantamount to taking the defendant's property without due process of law, no authority *748 has been cited and we can think of none. In view of the authorities above referred to, we think the converse is true, that is, to allow the defendant to continue to damage the property of the plaintiffs and gradually destroy the same, as well as to continuously emit substances that are injurious to their enjoyment thereof, without compelling it to compensate them therefor, would amount to the appropriation or taking of the property of the plaintiffs without due process of law as we understand the applicability of that law.
The defense that the claims of the plaintiffs are barred by the prescription of one year is equally without merit for the evidence unmistakably shows that the operating cause of the injury is a continuous one, giving rise to successive damages from day to day, and, under our law, in such cases prescription, whatever the length of time, has no application. Werges v. St. Louis C. N. O. R. Co., 35 La.Ann. 641; Di Carlo v. Laundry Dry Cleaning Service,
This leaves for our consideration the defendant's contention that the plaintiffs having "completely and utterly failed to offer any evidence whatever to support the specific claims for damages asserted in the petition, in discharge of the legal burden of proof placed upon them to establish that evidence by preponderance of testimony, the Court is without right to arbitrarily determine what part of all of the cost of complete repapering, repainting, rescreening and refinishing of the floors * * * may have possibly been occasioned by reason of any smoke, soot, cinders or fly ash from defendant's operations, as compared with the part thereof attributed to ordinary wear and tear from use over the period of four or five years."
Having concluded that the damages suffered by the plaintiffs are real and substantial, the trial judge, under the express provisions of Clause 2 of Paragraph 3 of Article 1934 of the Revised Civil Code was vested with discretion in assessing damages. Schmidt v. City of New Orleans,
For the reasons assigned, the judgment appealed from is affirmed, at the cost of the appellant. *750