156 P. 939 | Utah | 1916
■The plaintiff sued the defendant to recover damages which he alleged he sustained to his residence property by reasom of the construction and operation of a certain railroad, which, it is alleged, is owned and operated by the defendant; The-only allegations of the complaint complained of, which are-material here, are the following:
■ “That by the construction of said railroad tracks by the-defendant, and the operation of trains thereon, the above-described tract of land which is particularly described has: been permanently injured because of the cinders, smoke, and noise, incident to the operation of said steam railroad; and' for the further reason that it is difficult to obtain proper ingress and egress to and from said premises; thereby causing-the market value of said premises to depreciate in the sum of $1,000, and thus damaging plaintiff in said sum of $1,000.”'
The defendant answered the complaint, and, after admitting;
Upon substantially the foregoing issues a trial to a jury resulted in a verdict for the plaintiff in the sum of $300. Judgment was duly entered upon the verdict, and the defendant appeals.
The deed in question was acknowledged in the name of Eunice Ann Jacobson, and not in the name of the grantor as Eunice Ann Jordan. That, it is claimed, is such a defect that made the deed a nullity. It may well be that the acknowledgment was so defective as to vitiate the same. Under our statute, however (Comp. Laws 1907, Section 1975), a deed as between the partiés and those having notice thereof is good without any acknowledgment. The plaintiff was in the actual •possession of the property at, and long before, the time the railroad was constructed. That fact constituted notice to the defendant of whatever rights he may have had or claimed in the property. If, therefore, the deed be regarded as not hav-
In referring to the proof of title in actions like the one at bar the author of Lewis’ Eminent Domain (3d Ed.), Section. 661, says:
“Whenever it is necessary for the owner to prove title, a prima fade case is made out by proving possession under a deed purporting to convey a fee, or even l)y proving possession claiming title’” (Italics ours.)
The cases pro and.con to both the foregoing propositions are collated by the author in the footnotes to said section.. “While there is some diversity of opinion upon the subject,, yet both propositions are supported by what we deem the great weight of authority., This court is also committed to the doctrine stated in the foregoing text. Cottrell v. Pickering, 32 Utah, 62, 88 Pac. 696, 10 L. R. A. (N. S.) 404. The rule as it is stated in the foregoing text is discussed in the opinion in that case, and the authorities in support thereof are reviewed.
We are of the opinion that the proof of title was, prima facie, sufficient; and especially so in view that the defendant offered no objection to plaintiff’s evidence of title, and offered no objection whatever except to request a directed verdict upon the ground that there was no proof of title. The district court, therefore, committed no error in refusing the request.
So that a complete' undedstanding may be had respecting the relative location of plaintiff’s property; which contains a fraction less than an acre of ground, and the railroad in question, we append the following plat:
The broken lines indicate the boundaries of. defendant’s right of way, which is seventy-five feet in width. The line marked “M-L” is the main line, and the line marked “S-T” is the side track. The main line is thirty-five feet from the corner of plaintiff’s lot, no part of which was taken fór a right of way. The nearest corner of plaintiff’s dwelling house, marked “H,” is ninety-three feet from the side track and 108 feet from the main line. The space marked “S-S” is a narrow lane or street running in front of plaintiff’s property about thirty feet in width. The open space marked “d” at the northeast corner of plaintiff’s lot is a driveway through which he entered and departed from the lot with teams and wagons, and the smaller opening marked “g”is a small gate used for plaintiff and his family to pass through. Plaintiff’s house is about one mile from the station. Before the railroad was constructed there was a natural rise in the street north of plaintiff’s lot from west to east of about two feet from a point opposite plaintiff’s small gate to' a point a little west of the side track. When the railroad track was constructed the natural surface of the ground was raised three or more feet. After the railroad grade was completed the defendant graded the street in front of plaintiff’s property so that the rise in the street from a point a little west of plaintiff’s small gate to the center of the main track is a little
* The foregoing measurements, except the one in front of plaintiff’s driveway, are taken from the defendant’s suryey. While plaintiff’s witnesses gave the grade as being a little higher, and also differed somewhat in distances, it is clear that those witnesses merely gave their best judgment, and hence the measurements, -as they are stated above, may' be taken as practically correct.
Defendant’s counsel objected to the questions propounded’ to plaintiff’s witnesses for the reasons: (1) That the witnesses in testifying to the depreciation in the value of plaintiff’s property by reason of the construction and operation of the railroad in question were not limited to the elements of damage stated in the complaint, namely, cinders, smoke, noise, and the impeded ingress and egress to and from the premises in question by reason of the grading of the street which was made necessary by the railroad grade; and (2) because. those witnesses were permitted to testify that the premises were depreciated in value by reason of cinders being east thereon as an independent element, and by reason of smoke emitted from the engines passing over them as another independent element, and by reason of the noise of the engine in the operation of the engines and cars over the tracks as a third independent element. Counsel therefore insist: (1) That all the evidence respecting the cinders, smoke, and noise should have been excluded; and (2) that at all events-the witnesses should not have been permitted to consider elements not stated in the complaint. Counsel also separately objected to any evidence respecting the noise aforesaid.
Plaintiff’s counsel defend the court’s rulings, and attempt to sustain them by what they contend is said in Morris v. Railroad, 36 Utah, 14, 102 Pac. 629, and in O’Neill v. Railroad, 38 Utah, 475, 114 Pac. 127.- ■ There is absolutely nothing in the opinion in the O’Neill Case which lends any color to counsel’s contentions, and there really is nothing in the Morris Case which does so. It is true that in the Morris Case the question respecting what elements might be considered in such cases affecting the valúe of the property in question was more particularly referred to than in the O’Neill Case. While the question of noise is referred to in the Morris Case, and it is there said that the court’s ruling did not constitute error, yet the question was not directly presented, as it is in this case. In that case the defendant’s counsel objected to the introduction of a number of elements, alb covered by one objection, some of which were not objectionable, and hence the court’s ruling in refusing to sustain the objection could not be held erroneous. Moreover, it clearly was made to appear that the plaintiff in the Morris Case did not claim that she was entitled to damages for .noise as an independent element, but all she there attempted to prove was that the tracks, as laid, and the trains, as operated, tended to depreciate the value of her property. Again, both in the Morris and in the 0 ’Neill Case the evidence showed. considerable physical in
In referring to the subject of smoke, Mr. Lewis, in his valuable work on Eminent Domain, Yol. 1, Section 236 {3d Ed.), says:
“The owner of land has a right that the air which comes upon his premises shall come in its natural condition, free from artificial impurities. This right has its correlative obligation, which is that one must not use his own premises in such a manner as to discharge into the atmosphere of his neighbor dust, smoke, noxious gaseS or other foreign matter which substantially affect its wholesomeness.”
Smoke, to some extent, like cinders or other foreign substances, therefore, directly affects the property as well as the enjoyment thereof. Again, smoke is not only offensive and a discomfort, but it is deleterious to health, and in large quantities may become very injurious. Smoke, like cinders, is more or less tangible; and, like cinders, may have more effect on one property adjacent to a railroad than upon another close by. Of course, one would assume that where trains, as in the case at bar, pass by the property in question only one way and are not frequent, the injury from either cinders or smoke could not be great. This, however, is not a question of law, but one of fact. If the value of property, is depreciated to any appreciable extent, a cause of action arises, and the extent of the depreciation is for the jury. Noises, however, that are necessarily caused by the operation of engines and trains, are unavoidable and affect all alike who come withip. their range. Besides, as pointed out in the Church Case, supra, those noises arising from the operation of trains which are merely incident to such operation arise from a lawful and a necessary business. To operate trains must necessarily produce noise. While it may be a disturbing element, at times, yet it is one that cannot be avoided, and if the noises of the engines and the moving of the trains are to be considered as elements of damage, then all noises which are incident to modern enterprises of all kinds must also be considered. We now think, as we thought when we passed on the Church. Case, that the noises which are necessarily incident to the operation of moving trains are so unavoidable
By what we have said we do not wish to be understood as holding that noises may not, under certain circumstances, become a nuisance and an element of damage. One can easily conceive that a foundry, a roundhouse, a machine shop, or some stationary institution of like character, might be erected near a dwelling, a school house, a hospital, or a church, .which would make it impossible to comfortably live in the first, or to successfully carry on the second, or conduct the third, or to worship in the church. Such workshops would, however, produce noises more or less constantly, and they would emanate from institutions which could as well be erected and operated elsewhere. Railroad trains, however, pass only occasionally and the noise they make is not of that character which may not easily be endured. Millions ride on trains each year and none seem to be seriously affected by the noise. Again, one readily adapts himself to the noise of passing trains. We are of the opinion, therefore, that it is perfectly proper and competent to show as-an element affecting the value of property that cinders are cast thereon, and it is likewise proper and competent, and especially where the property is occupied and used for residence purposes, to show that smoke pollutes the atmosphere. We are also of the opinion that it is not proper or competent'to show or consider the noise that is necessarily caused as an incident to the operation of engines and trains as an element affecting the value of property. The court, therefore, erred in overruling defendant’s objection to plaintiff’s evidence whereby he was permitted to show the casting of cinders as an independent'and separate element of damages and the emission of smoke for the same purpose. These elements should not be permitted to be shown or considered by the jury as separate and distinct elements of damage. They may, however, be shown and considered in connection with all other proper elements as affecting the value of the property. The measure of recovery.is the depreciation of the market value of the property, if any,
“No corporation shall lease or alienate any franchise, so as to relieve the franchise or property held thereunder from the liabilities of the lessor, or grantor, lessee or grantee, contracted or incurred in operation, use or enjoyment of such franchise or any of its privileges. ’ ’
Counsel do not dispute the fact that the injuries that are caused by the cinders and smoke, if any, were necessarily incident to the operation of defendant’s railroad. This being conceded, we need not now inquire to what extent the defendant would be liable for the torts, willful or otherwise, of its lessee. We think that, both upon general principles of law (33 Cye. 703) and under the constitutional provision aforesaid the defendants is liable for any depreciation of the value of plaintiff’s property which was caused either in constructing the railroad or as a necessary incident of its operation, although operated by its lessee.
What has been said also disposes of the numerous exceptions to the instructions given as well as to the refusals to instruct as requested.
For the reasons stated, the judgment is reversed; and the cause is remanded to the District Court of Utah County with directions to grant a new trial, and to proceed with the case in accordance with the views herein expressed. Appellant to recover costs of this appeal.