125 Minn. 224 | Minn. | 1914
For more than 25 years defendant has owned a 66-foot right of way near what is now the northerly limits of the city of Minneapolis. Upon this right of way is located its main line of railway running west. It crosses Queen Avenue North, a street running north and south, at 47 Avenue North. Proceeding westerly it angles north about 15 degrees. Prior to 1909 the land north of the railroad between Humboldt and Thomas avenues, the former being nine blocks east and the latter three blocks west of Queen avenue, had been platted.
Before the adoption of the constitutional amendment, providing that compensation must be paid’ for damaging or destroying private property for public use, as well as for taking the same, it was established by three decisions of this court that no action lies against a railroad company for damages unavoidably resulting to near-by property from the noises, smoke or jarring incident to a proper operation of its railroad upon lands in which, the person inconvenienced has an interest. Rochette v. Chicago, M. & St. P. Ry. Co. 32 Minn. 201, 20 N. W. 140; Adams v. Chicago, B. & N. R. Co. 39 Minn. 286, 39 N. W. 629, 1 L.R.A. 493, 12 Am. St. 644; Carroll v. Wisconsin Central R. Co. 40 Minn. 168, 41 N. W. 661. In the last-mentioned case Chief Justice Gfilfillan states: “Railroads are a public necessity. They are always constructed and operated under authority of law. They bring to the public great benefits; to some persons more, to other persons less. The operating them in the most skilful and careful manner causes to the public necessary incidental inconveniences, such as noise, smoke, cinders, vibrations of the ground, interference with travel at the crossings of roads and streets, and the like. One person may suffer more from these than another. * * * But the difference is only in degree, not in kind. Such inconveniences are
It is not necessary to pursue this subject further, for plaintiff con
Courts have distinguished between the location and operation of a railroad between and at stations, and the location and operation of such incidental but necessary equipments as railroad shops, roundhouses, and switch yards like the one here in question. These latter do not serve the public directly. Their location and operation is of no public concern, except as indirectly affecting the transportation problem. In selecting a place for these, the railroad acts as an individual attending to his private business and must be responsible as such for injuries to the property rights of others flowing from such selection and subsequent operation. In other words, in the location and operation of these incidental transportation facilities the railroad company has a free hand and may not shield itself from responsibility for damage to others behind any rule of public necessity or authorization by law. It is different from freight houses and yards for receiving and delivering car load shipments. Bublic necessity, and sometimes statutes, demand that such be located for public convenience. We therefore do not think decisions like Atchison, T. & S. E. Ry. Co. v. Armstrong, 71 Kan. 366, 80 Pac. 978, 1 L.R.A. (N.S.) 113, 114 Am. St. 474; Georgia R. & Banking Co. v. Maddox, 116 Ga. 64, 42 S. E. 315; Taylor v. Seaboard Air Line Ry. Co. 145 N. C. 400, 59 S. E. 129, 122 Am. St. 455; Beseman v. Pennsylvania R. Co. 50 N. J. L. 235, 13 Atl. 164, which state the broad doctrine that no redress is given to a private person who suffers from the consequences of an act authorized by law, are controlling here, even if sound.
The location of this switch yard must be conceded proper in the
Did plaintiff show injuries special to himself ? We have already stated that the testimony tended to show that during the nighttime the noise and disturbance from the operation of the switch yard were so loud, incessant, and distracting as to rob plaintiff and his family of sleep and rest; also that large volumes of smoke, cinders and dust were thrown upon his property and thereby its use and value almost destroyed. Section 8085, G. S. 1913, reads: “Anything which is injurious to health, or indecent or offensive to the senses, or an obstruction to the free use of property, is a nuisance. An action may be brought by any person whose property is injuriously affected or whose personal enjoyment is lessened by the nuisance, and by the judgment the nuisance may be enjoined or abated, as well as damages recovered.” In Woods, Nuisances (3d ed.) § 611, it is said: “It is now well settled that noise alone, unaccompanied with smoke, noxious vapors or noisome smells, may create a nuisance and be the subject of an action at law for damages.” And in section 505 it is stated that “smoke alone may constitute a nuisance.” See also sections 495 and 497 to the effect that every one has the right to have air diffused over his premises in its natural state free from artificial impurities imparted by a neighbor; and that the property owner has the right to recover damages, not only for injuries affecting the corpus of his estate but also for such as impair unreasonably the enjoyment and use thereof. Lewis, Eminent Domain, § 237, pertinently asks: “What valid distinction can be made between discharging smoke or noxious gases in the atmosphere which find their way into the air of the adjoining lot and cause a nuisance, and the discharge of water or noxious liquids which flow upon adjoining property or percolate through its soil so as to create a nuisance upon the land ? The oper
In Chicago, M. & St. P. Ry. Co. v. Drake, 148 Ill. 226, 35 N. E. 750, the court said it was not prepared to coincide with the view that noise and disturbance from railway yards were damnum absque injuria.
A case more frequently cited than any other on the proposition here involved is Baltimore & P. Ry. Co. v. Fifth Baptist Church, 108 U. S. 317, 2 Sup. Ct. 719, 27 L. ed. 739, which was an action against the railroad company for damages on account of the erection and operation of a shop and roundhouse so near the church that its use by the plaintiff congregation was seriously impaired from the smoke, noise and steam emitted from the company’s plant. There was a recovery. The court, after stating that the liability of the railroad company for the annoyance and discomfort caused is the same as that of individuals for similar wrongs, and that it was no defense to say that the shop and roundhouse were skilfully constructed and were necessary for the maintenance of the road authorized to run through the city, proceeds [page 331] : “Grants of privileges or powers to corporate bodies, like those in question, confer no license to use them in disregard of the private rights of others, and with immunity for their invasion. * * * It admits indeed of grave doubt whether Congress could authorize the company to occupy and use any premises within the city limits, in a way which would sub•jeet others to physical discomfort and annoyance in the quiet use and enjoyment of their property, and at the same time exempt the company from the liability to suit for damages or compensation, to which individuals acting without such authority would be subject under like circumstances.” In the opinion is the suggestion that the company might have selected another location where the injury to adjoining property would not have been so great. But it is not therefore to be inferred that if the railroad company, instead of locating
And as sustaining the view herein before expressed that railroad shops, roundhouses and switch yards like the one in question here stand on a different footing from tracks between stations, passing tracks, depots, freight-houses and yards for receiving and delivering shipments in respect to their location and operation being a private injury or nuisance which the law will redress may be cited: Cogswell v. New York, N. H. & H. Ry. Co. 103 N. Y. 10, 8 N. E. 537, 57 Am. Rep. 701; Spring v. Delaware, L. & W. R. Co. 88 Hun, 385, 34 N. Y. Supp. 810; Wylie v. Elwood, 134 Ill. 281, 25 N. E. 570, 9 L.R.A. 726, 23 Am. St. 673; Louisville & Nashville Terminal Co. v. Lellyett, 114 Tenn. 368, 85 S. W. 881, 1 L.R.A.(N.S.) 49. In the last-named case it is held that a terminal railway company in exercising the discretion conferred by the legislature to locate its yards and terminal facilities acts at its peril not to create a nuisance to neighboring property. There the plaintiff’s property was 225 feet away from the original tracks; the terminals were located beyond, these. .The court says: “We are of opinion that, in so far as the growth and increase of travel and traffic into and through the station has brought discomfort to plaintiff, he is without remedy. In other words, the roads have the right to accommodate their increasing traffic and travel without liability, so long as their trains are operated without negligent disregard of the comfort and usable value of plaintiff’s property, and, for this purpose, to lay such additional tracks, and switches into and through the station as may be required to
In Townsend v. Norfolk Ry. & Light Co. 105 Va. 22, 52 S. E. 970, 4 L.R.A.(N.S.) 87, 115 Am. St. 842, 8 Ann. Cas. 558, it was said: “Damage occasioned by the location of a power house (for the railway) does not stand upon the same footing as damage resulting from the operation of a railway along an unauthorized route.” It may also be suggested that the property and persons affected by the location of shops, roundhouses and s.witch yards such as this are limited and circumscribed in extent; and that those annoyed by their operation do suffer differently from those exposed to the intermittent discomforts which attend' the ordinary operation of trains. The injury to those affected by these incidental railway facilities may therefore be said to be special and peculiar. The noise and smoke from shops are incessant during the ordinary work day. And here the operation of the switchyard was continuously distracting during the night. See also Baltimore Belt R. Co. v. Sattler, 100 Md. 306, 59 Atl. 654, and Bramlette v. Louisville & N. Ry. Co. 113 Ky. 300, 68 S. W. 145. The distinction herein pointed out is also recognized in the late case of Roman Catholic Church of St. Anthony of Padua v. Pennsylvania R. Co. 207 Fed. 897, — C. C. A. —.
It would seem to follow that, if this switch yard, although properly located and operated, constitutes a private nuisance to plaintiff’s use and enjoyment of his property, there is an injury to private property by a public use for which compensation must be made under the Constitution of this state as it now reads. Lewis, Eminent Domain, § 238, states: “If the use of property for public purposes produces a nuisance, those injured are entitled to compensation. * * * It is immaterial whether the particular use of the property is authorized by the legislature or not. The right not to be injured by a nuisance on adjoining land cannot be taken without compensation. The Massachusetts court has held -that “the legislature may authorize
The decisions in Nebraska, which however go further than in any other state, uniformly hold that injurious consequences to property such as shown herein from the operation of a railroad is an injury or damage within the constitutional provision requiring compensation, and that without regard to whether it proceeds from the operation of the railroad between stations, or from shops and the like. Chicago, K. & N. Ry. Co. v. Hazels, 26 Neb. 364, 42 N. W. 93; Omaha & N. P. Ry. Co. v. Janecek, 30 Neb. 276, 46 N. W. 478, 27 Am. St. 399; Chicago, R. I. & P. Ry. Co. v. O’Neill, 58 Neb. 239, 78 N. W. 521; Stehr v. Mason City & Ft. D. Ry. Co. 77 Neb. 641, 110 N. W. 701, 124 Am. St. 872; and Kayser v. Chicago, B. & Q. Ry. Co. 88 Neb. 343, 129 N. W. 554. Judge Hook in Mason City & Ft. D. R. Co. v. Wolf, 148 Fed. 961, 78 C. C. A. 589, in summing up the law as it obtains in Nebraska, states: “The right of recovery under the state Constitution is not limited to those cases in which the property of a private owner is actually invaded or appropriated by a railroad company. It extends to cases where the value of the property is depreciated by the disturbance of some right either public or private which the owner enjoys in connection therewith. * * * The right of recovery includes damage to' the property from noise, smoke, cinders and vibrations of the ground and the obstruction or impairment of the right of the owner to make use of public highways in the vicinity.”
Judge Caldwell in Chicago G. W. Ry. Co. v. First M. E. Church,
We also refer to the exhaustive discussion of the subject found in the dissenting opinion of Justice Lewis, concurred in by Justice Lumpkin, in Austin v. Augusta Terminal Ry. Co. 108 Ga. 671, 34 S. E. 852, 47 L.R.A. 755, and the notes to Louisville & Nashville Terminal Co. v. Lellyett, 1 L.R.A. (N.S.) 49, and Tidewater Ry. Co. v. Sharter, 17 L.R.A.(N.S.) 1053. In Rainey v. Red River T. & S. By. Co. 99 Tex. 276, 89 S. W. 768, 90 S. W. 1096, 3 L.R.A. (N.S.) 590, 122 Am. St. 622, 13 Ann. Cas. 580, this language occurs : “Did the legislature intend to authorize a railroad running in the city of Austin to establish and operate structures of the character in question, so near to- the Capitol as- to render it unfit for the purposes for which it was constructed ? The same question may be asked as to a court house of the county, the public school buildings and the churches of the city. We should be loathe to answer this question in the affirmative. Tet, if the statute empowers a railroad company to establish its shops in such proximity to a private dwelling as to depreciate its value and to bring great discomfort upon the occupants, no sufficient reason suggests itself to our minds why the same might not be done as to the Capitol, court house, and other public structures.”
Cases relied on by defendant come nearly all within the principle conceded by plaintiff, namely, that in so far as disturbance, smoke and dust emanate from the operation of a railroad between and at stations there is no redress for the individual who may suffer in the use and enjoyment of his property. Twenty-second Corp. of Church of Jesus Christ of Latter-Day Saints v. Oregon S. L. R. Co. 36
It is claimed that under Romer v. St. Paul City Ry. Co. supra, decided subsequent to the amendment of the Constitution, securing private property against damage or destruction by public use, as well as against the taking thereof for- such use, without compensation, there can be no recovery here. It will be noticed, however, that the defendant in that case, a street railway company, was authorized and required to operate its cars upon the street. The disturbance created came mostly from the movement of the cars after they passed out of the barn and onto the street, and the court seems to place the refusal to regard the car barn as a nuisance upon the ground that the discomforts to plaintiff were essentially the same as those suffered by others where the car line turns corners. The court also distinguishes a commercial steam railroad from a street railway as to the consequences to adjacent property rights and therefore did not consider the case of Baltimore & P. Ry. Co. v. Fifth Baptist Church, supra, a controlling guide. The point that under our Constitution the right to compensation is given where damage to private property results from public use was not there raised, nor could it be; for section 6137, G. S. 1913, provides that no street railway company shall exer
We are of the opinion that it was a question for the jury upon this record whether the disturbances and loud noises proceeding from the operation of this switchyard during the night time together with the smoke, dust and cinders thrown upon plaintiff’s premises were such as to seriously interfere with and impair the enjoyment and value thereof which existed previously to the operation of the switch-yard. It was therefore error to dismiss the action.
Judgment reversed.