200 S.W. 1117 | Tex. App. | 1918
The validity of the judgment is attacked on two grounds:
1. Notwithstanding the operation of the *1118 roundhouse with its appurtenances and appliances "produced," as found by the court, "smoke, soot, dust, unpleasant vapors, gases, and noises," which so injured appellee's property as to depreciate its value, it is insisted that appellant was not liable as determined by the judgment. The contention is based upon findings: (1) That appellant was a federal corporation engaged in interstate commerce as a common carrier; (2) that it was necessary to the conduct of its business as such a carrier to construct and operate the roundhouse, etc.; (3) that it was more convenient to it, and less expensive, to construct and operate same at the place it and construct same than at any other place obtainable for the purpose; (4) that the roundhouse, etc., could not be operated without the emission therefrom of smoke, soot, dust, unpleasant vapors, gases, and noises; (5) that in the construction and operation thereof appellant neither took nor destroyed appellee's property, or any of it; and (6) that appellant was not guilty of negligence in either the construction or operation of the roundhouse.
It could not be, and we do not understand that it is, contended that the annoyance to occupants of the premises in question caused by smoke, soot, dust, unpleasant vapors, gases, and noises which the court found were emitted in the operation of the roundhouse did not constitute a nuisance within the meaning of the law. 29 Cyc. 1152, 1184; Daniel v. Railway Co.,
"The case shows that Congress has authorized, and in [legal] effect commanded, defendant to construct its tunnel with a portal located in the midst of an inhabited portion of the city [of Washington]. The authority, no doubt, includes the use of steam locomotive engines in the tunnel, with the inevitable concomitants of foul gases and smoke emitted from the engines. No question is made but that it includes the installation and operation of a fanning system for ridding the tunnel of this source of discomfort to those operating the trains and traveling upon them. All this being granted, the special and peculiar damage to the plaintiff as a property owner in close proximity to the portal is the necessary consequence, unless at least it be feasible to install ventilating shafts or other devices for preventing the outpouring of gases and smoke from the entire length of the tunnel at a single point upon the surface, as at present. Construing the acts of Congress in the light of the Fifth Amendment, they do not authorize the imposition of so direct and peculiar and substantial a burden upon plaintiff's property without compensation to him. If the damage is not preventable by the employment at reasonable expense of devices such as have have been suggested, then plaintiff's property is `necessary for the purposes contemplated,' and may be acquired by purchase or condemnation (32 Stat. at L. 916, c. 856, § 9), and pending its acquisition defendant is responsible. If the damage is readily preventable, the statute furnishes no excuse, and defendant's responsibility follows on general principles." *1119
It seems to us that the case from which the quotation above is made, far from supporting, instead determines, appellant's view of the law to be erroneous, and that it alone might very well be regarded as sufficient authority for overruling appellant's contention. But as strong, if not stronger, authority for doing that is found in Railway Co. v. Fifth Baptist Church,
"It is no answer to the action of the plaintiff that the railroad company was authorized by act of Congress to bring its track within the limits of the city of Washington, and to construct such works as were necessary and expedient for the completion and maintenance of its road, and that the enginehouse and repair shop in question were thus necessary and expedient; that the chimneys of the enginehouse are higher than required by the building regulations of the city, and that as little smoke and noise are caused as the nature of the business in them will permit. In the first place, the authority of the company to construct such works as it might deem necessary and expedient for the completion and maintenance of its road did not authorize it to place them wherever it might think proper in the city, without reference to the property and rights of others. * * * Whatever the extent of the authority conferred, it was accompanied with this implied qualification, that the works should not be so placed as by their use to unreasonably interfere with and disturb the peaceful and comfortable enjoyment of others in their property. 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. The great principle of the common law, which is equally the teaching of Christian morality, so to use one's property as not to injure others, forbids any other application or use of the rights and powers conferred."
2. The other ground upon which the judgment is attacked is that it appeared from the court's findings, it is asserted, that appellee failed to show that she owned the property described in her petition. The finding of the court was that appellee owned the property at the time of the trial, had owned it "for more than 20 years, enjoying the fruits and revenues therefrom, claiming same as her own," and owned it at the time appellant constructed its roundhouse, etc. The contention is based on a further finding by the court that appellee "did not introduce any deed or other muniment of title, but testified orally that she owned the property described in her petition," and the statement of the court that upon that testimony alone he based his finding that she owned it. We do not think the statement of the court should be construed to mean that he based his finding that appellee owned the property on her testimony merely that she "owned" it. On such testimony alone he could not have found that she had owned the property "for more than 20 years, enjoying the fruits and revenues therefrom, claiming same as her own." He must have meant that appellee offered no written evidence of title in herself to the property, but relied entirely upon oral evidence of possession thereof to prove that she owned the property. That she might, as against appellant, have proved ownership by that kind of evidence, is well established by the authorities, and in the absence of a statement of facts we think it should be assumed in support of the court's finding that she did so prove it.
The judgment is affirmed.