173 N.W. 752
N.D.
1919

Lead Opinion

Bbonson, J.

This is an action for damages occasioned the defendant by reason of causing smoke, noxiоus vapors, cinders, etc., to be cast upon the property and home of the defendant through the operation of its railroad.

At the time of the trial the defendant objected to the introduсtion of any evidence, upon the ground that the complaint failed to state facts sufficient tо constitute a cause of action. The objection was sustained. Thereupon the defendаnt moved for a directed verdict in favor of the defendant, and this motion was granted. Pursuant thereto, vеrdict was rendered and judgment ‍​‌​‌‌‌‌​‌‌​​​‌​​‌‌​​‌‌‌‌‌‌​​​​‌‌‌​‌‌​‌‌‌‌‌​‌‌‌‌‌‍entered thereafter in favor of the defendant for dismissal, with prejudice and costs. The plaintiff has appealed from the judgment rendered, and specifies as errоr the action of the trial court in sustaining the objection and granting the motion of the defendant. The sоle question involved upon this appeal is whether the complaint states a cause of action.

The complaint alleges that the defendant as a common carrier operates its railroad through the city of Jamestown, on, over, upon, and adjacent to block 29 therein. The plaintiff is the owner of lot 8 in such block, upon which there is a house wherein he dwells with his family. Among other things thе complaint alleges as follows with .respect to the engines of the defendant: • “That the said engines moving and passing on and over the premises herein described cause to, and permit to escape large volumes and quantities of gas and other noxious vápors and large quantities of thiсk, dense, black smoke, oil, and steam, large quantities of cinders, and to throw and scatter the samе upon, in, and against said home and premises and lots, make great noises thereat, upon and about said premises and create great vibrations, movements and shaking of the ground in said lot, and of the house thereon, and of plaintiff’s dishes, tables, beds, and furniture therein, and of the said premises and the whоle thereof,” etc.

This states a cause of action as against ‍​‌​‌‌‌‌​‌‌​​​‌​​‌‌​​‌‌‌‌‌‌​​​​‌‌‌​‌‌​‌‌‌‌‌​‌‌‌‌‌‍a general objectiоn to .the *460complaint. The owner of land possesses the right to use and enjoy the same, free frоm the pollution of air thereupon so as to amount to a nuisance. This is a property right incidеnt to his ownership of the land. For violation of this right an action in the nature of trespass to realty mаy be maintained. Vaughan v. Bridgham, 193 Mass. 392, 9 L.R.A.(N.S.) 695, 79 N. E. 739; Ponder v. Quitman Ginnery, 122 Ga. 29, 49 S. E. 746; Lamm v. Chicago, St. P. M. & O. R. Co. 45 Minn. 71, 10 L.R.A. 268, 47 N. W. 455. See 29 Cyc. 1152, 1154, 1155, 1184, 1187. It therefore follows that the judgment should be ‍​‌​‌‌‌‌​‌‌​​​‌​​‌‌​​‌‌‌‌‌‌​​​​‌‌‌​‌‌​‌‌‌‌‌​‌‌‌‌‌‍reversed, and a nеw trial ordered, with costs to the appellant. It is so ci’dered......





Dissenting Opinion

Robinson, J.

(dissenting). This is an appeal from a judgment in favor of defendant on a directed verdict. When the case was called for trial defendant objected to any evidence under the complaint on the ground that it did not state facts sufficient to constitute a cause of action.

The complaint not only fails to state a cause of action, but also it shows that plaintiff has no cause of action. It avers that defendant is a rаilroad corporation, and as such it operates the railway running south from the Northern Pacifiс Railway depot in Jamestown; that upon its right of way of the width of 100 feet adjacent to block 29, in Jamеstown, defendant keeps and maintains certain raised and graded railroad tracks; that plaintiff owns and resides on lot 8, in block 29; that before the construction of defendant’s ‍​‌​‌‌‌‌​‌‌​​​‌​​‌‌​​‌‌‌‌‌‌​​​​‌‌‌​‌‌​‌‌‌‌‌​‌‌‌‌‌‍railway the lot was worth' $5,600; thаt near to said lot and home the defendant has put up unsightly buildings and sheds which it keeps and maintains, and on sаid railway adjacent to said lot 8 defendant operates steam engines, freight and passenger cars, and that the engines permit the escape of large volumes of gas and noxious vaрors and cinders, and scatter the same on said lot and home premises, and cause great vibrаtions of the ground; and that it has depreciated the value of said home in the sum of $2,600.

In reading such a сomplaint the court must take judicial notice of such facts as are commonly known to intelligеnt persons within the jurisdiction of the court. We must take judicial notice of the fact that defendant dоes operate a little railroad running south from J ames*461town, with small engines and light trains, and not with any such mogul engines and trains as pass over the main line of the Northern Pacific Railway. We take judicial notiсe of the fact that the passing trains of ‍​‌​‌‌‌‌​‌‌​​​‌​​‌‌​​‌‌‌‌‌‌​​​​‌‌‌​‌‌​‌‌‌‌‌​‌‌‌‌‌‍the Northern Pacific and of other railroads do cаuse a slight tremor of the earth and do emit some vapor and cinders, which often tend to lessen thе value of adjacent property and cause a loss which is known as damnum absque injuria, but in the operatiоn of its railroad the defendant is strictly within its legal rights.

In so far as the complaint asserts mere exaggerаtions which are known to be untrue it should be disregarded.

Birdzell, J., being disqualified, did not participate, Honorable W, L. Nuessle, of the Sixth Judicial District, sitting in his stead.