105 Va. 22 | Va. | 1906
Lead Opinion
delivered the opinion of the court.
To this declaration the defendant filed a special plea, in which it sets out that, before the time of the committing of the alleged grievances in the declaration mentioned, the General Assembly of Virginia had passed an act to incorporate the Virginia Electric Company, by which it was provided that it should have power to construct, lease, purchase or acquire by consolidation with any other company or companies, and operate and maintain in the city of Norfolk, suitable works, machinery, or plants, for the manufacture of electricity, and for the sale and ■distribution of the same; that it should have power to sell and ■distribute the same for public or private illumination, for heating and for power, and for any other purposes which the same might be used for; that it should have power to do such acts and things, and conduct such enterprises as. might be convenient in ■connection with or incidental to the enjoyment of the powers thereinbefore conferred; and that it might, with the consent of the proper authorities of the city of Norfolk, use the streets and roads thereof for laying its mains, pipes, wires, and erecting its poles; that by an act of the Legislature, entitled “An Act to in
The plaintiffs demurred to this special plea, and that demurrer was overruled by the court. And the plaintiffs not withdrawing, nor desiring to withdraw, their demurrer, the court gave judgment in favor of the defendant.
Section 153 of the Constitution declares, that the term “public service corporation” shall include “all transportation and transmission companies, all gas, electric light, heat and power companies,, and all persons authorized to exercise the right of eminent domain, or to use or occupy any street, alley or public highway, whether along, over, or under the same, in a manner not permitted to the general public.”
Under the terms of this definition it is apparent the Norfolk Railway and Light Company is to be deemed a public service corporation.
It will be observed that the declaration nowhere states that the injury of which the plaintiffs complain was caused by any negligent act upon the part of the defendant. The contention of plaintiffs is that in the operation of its plant the defendant wrongfully caused smoke, dust, cinders, sparks and soot from its chimney stacks to be thrown and propelled upon and through the houses of the plaintiffs; that by the operation of its heavy machinery it caused the houses of the plaintiffs to be greatly shaken and damaged; and that by permitting the electric current from its wires and conduits, or on return circuit to escape from its wires, or returning by ground circuit, to run over and through the pipes placed to carry water and gas to the houses of plaintiffs, the pipes had been eaten up and destroyed; and
The defendant replies that it has operated, and continues to operate, its plant in a proper, careful, reasonable and suitable manner, in pursuance of legislative and municipal authority conferred upon it.
The question, therefore, for us to consider, is, whether or not the court erred in overruling the demurrer to this plea.
The declaration sets forth a nuisance; the defendant justifies what it has done by pleading legislative authority for its acts.
A public service corporation is to be considered in two aspects. It has duties which it owes to the public, and which it must perform; it has other duties not of a public nature, which are incidental to those of a public character, in the performance of which it stands upon.the footing of a private corporation. With respect to the duties of the first class, it may be said that in doing that which under the law it may be required to do, it cannot be considered as doing an unlawful act; and if a lawful act be done without negligence, any injury which it occasions is damnum absque injuria.
This aspect of the case was before this court in Fisher v. Seaboard Air Line Railway Co., 102 Va. 363, 46 S. E. 381, where it was said, that a railroad company acting under authority of law, whose road is constructed and operated with judgment and caution, and without negligence, is not liable to an adjacent landowner for damages resulting from noises, jarring and shaking of buildings, dust and smoke incident to the running of trains; for no action lies for the loss or inconvenience resulting from doing an authorized act in an authorized way. To the authorities relied on in support of this case many others may be added.
That railroad corporations—public service corporations—are in many aspects to be regarded as quasi public corporations, can no longer be doubted. Upon that theory their duties are measured and their rights determined; and the control which the
It would be easy to multiply authorities along this line. Indeed, B. & P. R. Co. v. Fifth Baptist Church, 108 U. S. 517, 27 L. Ed. 730, 2 Sup. Ct. 719, upon which plaintiffs in error justly rely in another aspect of this case, uses the following language:
“Undoubtedly a railway over the public highways of the district, including the streets of the city of Washington, may be authorized by Congress, and if when used with reasonable care it produces only that incidental inconvenience which unavoidably follows the additional occupation of the streets by its cars with the noises and disturbances necessarily attending their use, no one can complain that he is incommoded. Whatever consequential annoyance may necessarily follow from the running of cars on the road with reasonable care is damnum absque injuria. The private inconvenience in such case must be suffered for the public accommodation.”
We shall not press this view of the case further, for counsel for plaintiffs in error state in their brief that they do not “seriously contest” the doctrine enunciated by this court in Fisher v. Railway Company, supra.
Pollock on Torts, at p. 158 of the 2d ed. of his work, says: “A railway company is authorized to acquire land within specified limits, and on any part of that land to erect workshops. This does not justify the company, as against a particular householder, in building workshops so situated (though within the authorized limits) that the smoke from them is a nuisance to him in the occupation of his house.”
In re Rhode Island R. Co. (R. I.), 48 Atl. 592, 52 L. R. A. 879, it is said: “The common carrier serves both the public and itself. It has its public and private functions. The public part is the exercise of its franchise for the accommodation of the public; the private part is its incidental business, with which the public is not concerned and which the company manages for its own interest. The company carries passengers over its road as a public duty, but the generation of the power to propel cars is the private business of the company. Whatever is necessary to the exercise of the franchise is for the benefit of the public, but that which pertains simply to means of supply is a private business of the company.”
To the same effect is Louisville & Nashville Terminal Co. v. Jacobs (Tenn.), 72 S. W. 957, 61 L. R. A. 192, where it is said: “But over and beyond this, we think a corporation in selecting a place for its round-house acted in a private capacity,
In Beseman v. Railroad Co., supra, the court said: “A railroad company in selecting a place for repair shops and engine bouse acted altogether in its private capacity. Such location was a matter of indifference to tbe public; and consequently with respect to such an act tbe corporation stood on tbe footing of an individual, and was entitled to no superior immunities.”
In Baltimore & Potomac R. Co. v. Fifth Bap. Ch., supra, the Baptist Church claimed that its services were habitually interrupted and disturbed by tbe hammering noises made in tbe workshops of tbe company, tbe rumbling of its engines passing in and out of them, and tbe blowing off of steam; that these noises were at times so great as to prevent members of tbe congregation, sitting in parts of tbe church farthest from tbe shops, from bearing what was said; that tbe act of blowing off steam occupied from five to fifteen minutes, and frequently compelled tbe pastor of tbe church to suspend bis remarks. Tbe main reliance of tbe railroad company to defeat tbe action was the authority conferred upon it by tbe act of Congress of February 5, 1867, to exercise tbe same powers, rights, and privileges in tbe construction óf a road in tbe District of Columbia, tbe line of which was afterwards designated, which it could exercise under its charter in tbe construction of a road in Maryland, with some exceptions, not material here. By its charter it was empowered to make and construct all works whatever wbicb might be necessary and expedient in order to tbe proper completion and maintenance of tbe road. In its opinion tbe court says: “It is no answer to tbe action of tbe plaintiff that the railroad company was authorized by Act of Congress to bring its track within tbe limits of tbe city of Washington, and to construct such works as were necessary and expedient for tbe completion
In Ridge v. Railroad Co. (N. J. Ch), 43 Atl. 276, the Beseman Case, supra, and Railroad Co. v. Fifth Bap. Ch., supra, are considered, and the court says: “In the latter case it was denied by the Supreme Court of the United States that the railroad had been invested with the privilege of building an engine house or repair shop next to a church in the city of Washington. The court held that the grant of power did not authorize the company to place such structure wherever it might think proper in the city without reference to the property or rights of others. The doctrine of that case was approved in the opinion of Beseman v. Railroad Co., supra, upon the ground that in selecting the place for repair shops the railroad company acted altogether in a private capacity. Such location, it was said, was a matter of indifference to the public, and consequently, with
In Rapier v. London Tramways Company (1893) L. R., 2 Chy. Div., p. 588, the syllabus of the opinion delivered by Lindley, L. J., is as follows: “The defendants were a tramway company, who were empowered by their act to lay down and construct two lines of tramway according to deposited plans, together with the works and conveniences connected therewith. The act gave no compulsory powers for taking lands, and made no special mention of building stables. The defendants constructed the lines, and built some large blocks of stables near the plaintiff’s house for the horses employed in drawing the cars. The plaintiff complained of the smell caused by the stables, and brought an action for an injunction to restrain the defendants from using the stables so as to cause a nuisance. Held: (Affirming the decision of Kekewich, J.), that although horses were necessary for the working of the tramways, the company was not justified by their statutory powers in using
Other aspects of this case were discussed before us, upon which we have not deemed it necessary to touch; and without intimating any opinion upon them, except in so far as has been herein expressed, we shall content ourselves for the present with saying that we are of opinion that the Circuit Court should have sustained the demurrer to the special plea.
Rehearing
Upon a Petition to Rehear, February 23, 1906.
In the opinion delivered by the court when the judgment sought to be reviewed by this petition for rehearing was pronounced, it is said:
“The declaration sets forth a nuisance; the defendant justifies what it has done by pleading legislative authority for its acts.
“A public service corporation is to be considered in two aspects. It .has duties which it owes to the public, and which it must perform; it has other duties not of a public nature, which are incidental to those of a public character, in the performance of which it stands upon the footing of a private corporation. With respect to the duties of the first class, it may be said that in doing that which under the law it may be required to do, it cannot be considered as doing an unlawful act; and if a lawful act be done without negligence, any injury which it occasions is damnum absque injuria
This position is earnestly assailed in the petition for a rehearing, where it is broadly asserted that no such distinction
It may be that in the distribution of the duties of a public service corporation into those of a public and those of a private nature, the classification was inaccurate and unscientific, though it has the sanction of courts of the highest respectability. By other courts the same conclusion is reached by a consideration of the language used by the Legislature in the act of incorporation, and by its construction determining whether or not the law-making power intended to permit an act to be done, or to require its performance; to confer a privilege, or to impose a duty.
In the case of Fisher v. Seaboard Air Line Railway Co., 102 Va. 363, 46 S. E. 381, the position of this court is well stated in the syllabus. “A railroad company, acting under authority of law, whose road is constructed and operated with judgment and caution, and without negligence, is not liable to an adjacent land owner for damage resulting from the noises, jarring and shaking of buildings, dust and smoke, incident to the running of trains. Eo action lies for the loss or inconvenience resulting from doing an authorized act in an authorized way.” This is to be understood, of course, in the light of the facts presented in that record, where damages were claimed for the noises, jarring and shaking of buildings, dust and smoke incident to the running of trains. We were of opinion that in the absence of negligence, no damages could be recovered, for the reason that the road was obliged to run its trains, which could not be done, whatever the degree of caution exercised, without the inconveniences and injuries enumerated.
We have mentioned the Fisher Case and the Makely Case, not with any view to vindicating our consistency, but because we felt that it would be well to clear up any doubt that might exist as to the attitude of this court with respect to those decisions.
Coining back to the petition for rehearing, wre find the position of the petitioner thus stated: “The application of this doctrine of ‘private capacity’ is wholly inconsistent with the principles enunciated in the Fisher Case. We think that the fact that the doctrine is wholly erroneous can easily be demonstrated by stating it in the form of a syllogism, thus:
“The injuries done to property without negligence by a public service corporation, for which it will be held liable, are those done by it in its private capacity.
*40 “All injuries done to property without negligence by a public service corporation are done by it in its private capacity (i. e., by the-means and methods employed).
“Therefore, a public service corporation is liable for all injuries to property done by it without negligence.
“The conclusion is manifestly incorrect, and at least one of the premises must therefore be erroneous. The second premise we think we have demonstrated to be correctly stated—that is, that injuries to property are the result of the means and methods employed, and not of the public service performed. The error lies, therefore, in the first premise.
“The vice in this premise, and the simple answer to the various illustrations which we have given above, is demonstrated by a statement of the true principle, which is that a public service corporation, acting without negligence, is not liable for injuries which are the necessary consequences of the performance of its authorized functions. And we need go no further in search for authority for this position than the Fisher Case itself, where the court, quoting from Pollock on Torts, said: ‘It is settled that no action can be maintained for loss or inconvenience which is the necessary consequence of an authorized thing being done in an authorized manner.’ ”
We must again advert to the principle that all opinions are to be considered in the light of the facts to which they apply, for the transition from an authorized to an unauthorized act-—from that which is lawful to that which is unlawful—is oftentimes by easy and almost imperceptible gradations, so that in the enunciation of a principle the eye must always be kept upon the precise facts upon which it is to operate.
Almost all the questions upon which the law is doubtful or obscure arise at the vanishing point between contradictory and irreconcilable principles, and mark the effort “to deduce bar
Law is not an exact science. It has no invariable standard by which rights may be measured. It does not submit to inflexible rules of logic, nor can it, in its application to the varied affairs of men, always clothe itself in the form of a syllogism; and while we might hesitate to go to the full length of the view expressed by the great moralist we have just quoted, it is to a large extent true that “every human benefit and enjoyment, every virtue and every prudent act, is founded on compromise and barter.”
We should not, therefore, have been disposed to abandon our position, even though it had failed when subjected to the syllogistic test; but we are not prepared to admit that the test has been correctly applied. We do not admit the truth of the minor premise—we do not admit that all injuries done to property without negligence, by public service corporations, are done by them in their private capacity.
All injuries done to property, without negligence, by a public service corporation for which it will be held liable, it may, perhaps, be conceded are done by it in its private capacity; but there are injuries done by it in its public capacity for which it will not be held liable, and in that distinction is to be found the very gist of this controversy.
Bor can we concur in the answer which the j>etitioner suggests to the illustrations which it had given. We cannot admit that a public service corporation, acting without negligence, is, under all circumstances, irresponsible for injuries which are the necessary consequence of the performance of its authorized functions. There must be something more than authority to do the act complained of. It must be an act which the corporation is required to perform—a duty it owes and which has been
In Managers of the Metropolitan Asylum District v. Hill (1880-’81), 6 App. Cas. L. R. 193, the Metropolitan Poor Act, authorizing the formation of districts and district asylums for the care and cure of sick and infirm poor, created corporations .for that purpose, and gave authority to the Poor Law Board to issue directions to these corporations, enabled them to purchase lands and erect buildings for the purposes of the act, and made the rates of parishes and unions liable for the outlay thus incurred. But it does not by direct and imperative provisions,, order these things to be done, so that if, in doing them, a nuisance is created to the injury of the health or property of persons resident in the neighborhood of the place where the land is purchased or the buildings erected, it does not afford to these acts a statutory protection. And, therefore, where such nuisance was found as a fact, it was held that the district hoard
That case finely illustrates the effect of a statute merely permissive in its terms.
In London, Brighton & South Coast Ry. Co. v. Truman and others, L. R. 11, App. Cas. 45, a railway company was authorized, among other things, to carry cattle, and to purchase by agreement, in addition to the lands which they were empowered to purchase compulsorily, any lands not exceeding in the whole fifty acres, in such places as should be deemed eligible, for the purpose of providing additional stations, yards, and other conveniences for receiving, loading, or keeping any cattle, goods, or things conveyed or intended to be conveyed by the railway, or for making convenient roads or ways thereto, or for any other purposes connected with the undertaking which the company should judge requisite. The company were also empowered to sell such additional lands and to purchase in lieu thereof other lands which they should deem more eligible for the aforesaid purposes, and so on from time to time. The act contained no provision for compensation in respect of lands so purchased by agreement. Under this power the company, some years after
In Cogswell v. Railroad Co., 103 N. Y. 10, the syllabus is as-follows: “Whether the Legislature can authorize a railroad corporation to maintain an engine house, under circumstances; which, if maintained by an individual, would, by the common law, constitute a nuisance to private property without providing-compensation, quaere.
“But if this should be conceded, nevertheless the statutory-sanction which will justify an injury by a railroad corporation to private property without making compensation therefor, and without the consent of the owner, must be express or given by clear and unquestionable implication from the powers expressly-conferred, so that it can fairly be said that the Legislature contemplated the doing of the very act which occasioned the injury y it may not be presumed from a general grant of authority.
“WTiere the terms of a statute giving authority to such a corporation are not imperative, but permissive, this does not confer-license to commit a nuisance, although what is contemplated by the statute cannot be done without.”
In Bohan v. Port Jervis Gas-Light Company, 122 N. Y., at p. 18, 25 N. E. at p. 246, 9 L. R. A. 711, it is said that “although the acts complained of are inseparably connected with the carrying on of the business itself, and the-resulting damages-a necessary consequence, if those acts constitute a nuisance perse, it is not necessary to show negligence in order to sustain a.. recovery.
“As a general rule, corporations authorized by statute to carry on a business, although it may be of a quasi public character, are under the same obligations to make a reasonable use of their property and to respect the rights of others as are citizens.
“While the Legislature may authorize acts, which would otherwise be a nuisance, when they affect or relate to matters in which the public have an interest or over which they have control, the statutory authority which affords immunity for such acts must be express, or a clear and unquestionable implication from powers expressly conferred, and it must appear that the Legislature contemplated the doing of the very act which occasioned the injury.”
This whole subject is considered by the Supreme Court of the United States in Baltimore & Potomac R. Co. v. Fifth Baptist Church, 108 U. S. 317, 27 L. Ed. 739, 2 Sup. Ct. 719, which was decided in 1883, and has met with general approval. The Baltimore & Potomac Railroad Company was authorized by Act of Congress to lay its track within the limits of the city of Washington, and to construct other works necessary and expedient to the proper completion and maintenance of its road. It erected an engine house and machine shop on a parcel of land immediately adjoining the church, and used them in such a way as to disturb, on Sundays and other days, the congregation assembled in the church, to interfere with religious exercises therein, break up its Sunday schools, and destroy the value of the building as a place of public worship. Suit was brought against the railroad company to recover damages, and among
“Undoubtedly, a railway over the public highways of the District, including the streets of the city of Washington, may be authorized by Congress, and if when used with reasonable care it produces only that incidental inconvenience which unavoidably follows the additional occupation of the streets by its cars with the noises and disturbances necessarily attending their
It is said in the petition that the latter part of this quotation is a dictum. We hardly think so; but even if it were, it is the dictum of a judge whose great ability entitles his every utterance to the highest respect, and is sanctioned by the concurrence of the entire court. We may safely consider that opinion as expressing the fixed views of the Supreme Court of the United States upon the questions discussed.
The legislative authority relied upon in this case (Acts 1897-’98, pp. 495 and 1020, respectively) is as follows:
At section 2, page 496, occurs the following language: “The said company shall have power to construct, lease, purchase or acquire by consolidation with any other company or companies, and operate and maintain in the city or county of Norfolk, or both, and in any other city, town or village in the said county, suitable works, machinery and plants for the manufacture of electricity, and for the sale and distribution of the same; and it shall have power to sell and distribute the same for public and private illumination, for heating, for power and for any other purposes which the same may be used for, and it shall have power to do such acts and things, and conduct such enterprises as are convenient in connection with or incidental to the enjoyment of the powers hereinabove conferred, and may, with the consent of the proper authorities of the city of Norfolk, and of such other city, or town, or county as are named above, use the streets and roads thereof for laying its mains, pipes and wires and erecting its poles.”
And at section 3, p. 1020, it is declared that “The said company is authorized to promote, establish and maintain the bo si
In these quotations is found the sole authority of the defendant, to permit or to require, to excuse or to justify it in the performance of the acts complained of in this suit. The. case is, therefore, plainly to he classed with B. & P. R. Co. v. Fifth Baptist Church, supra, and other cases which we have cited, in which the effect of legislative authority has been discussed. It will he seen that the language is not imperative, hut permissive, and that it does not confer statutory sanction for the commission of a nuisance in any way whatever, and' most assuredly cannot he said to confer it in express terms, “or hy clear and unquestionable implication from the powers given,” so that it cannot he fairly said that “the Legislature contemplated the doing of the very act which occasioned the injury, and immunity is not to he presumed from a general grant, of authority.”
But it is said that the decision in this case, if permitted to stand, will “practically debar the use of many of the most important and developing features of our modern growth.”
It would he a source of regret if, in the administration of justice hy the establishment and enforcement of sound principles, the prosperity of our people should he hindered or checked, but it would he not only a source of regret, hut of reproach, if material prosperity were stimulated and encouraged hy a refusal to give to every citizen a remedy for wrongs he may sustain, even though inflicted hy forces which constitute factors in our material development and growth. Courts have no policies, and cannot permit consequences to influence their judgments further than to serve as warnings and incentives to thor
Reversed.
Rehearing denied.