233 U.S. 546
No. 52.
Argued November 7, 1913.
Decided May 4, 1914.
IN ERROR to the Court
of Appeals of the District of Columbia to review a judgment which affirmed
a judgment of the Supreme Court of the District in favor of defendant in
an action by a noncontiguous property owner to recover for the damage to
his property resulting from the operation of a railroad. Reversed and
remanded, with directions to reverse the judgment of the Supreme Court of
the District, and remand the cause to that court for a new trial.
See same case below,
37 App. D. C. 289.
The facts are stated
in the opinion.
547 Messrs. Hugh H. Obear, Charles A. Douglas, Thomas Ruffin, Edward
F. Colladay, Paul Sleman, and Harry F. Lerch for plaintiff in error.
Messrs.
John W. Yerkes, John J. Hamilton, and George E. Hamilton for defendant in
error.
548
Mr. Justice Pitney delivered the opinion of the court:
Plaintiff in error, who was plaintiff below, commenced this
action in the supreme court of the District of Columbia to recover for the
damage to his property resulting from the maintenance of an alleged
nuisance by defendant by means of the operation of a railroad and tunnel
upon its own lands near to, but not adjoining, those of plaintiff. Defendant having pleaded not guilty, the issue came on for
trial by jury, and at the conclusion of plaintiff's evidence a verdict was
directed in favor of defendant. The
court of appeals affirmed the judgment (37 App. D. C. 289), and a writ of
error brings the controversy under the review of this court.
An
agreed abridgment of the evidence upon which the ruling of the trial
justice was based is embodied in the bill of exceptions. From this it appears that plaintiff is and has been since the
year 1901 the owner of lot 34 in square 693 in the city of Washington,
having a frontage of 20 ft. upon the westerly side of New Jersey avenue,
southeast, and an average depth of 81 ft., with improvements thereon
consisting of a three-story and basement brick dwelling house containing
ten rooms, known as No. 415 New Jersey avenue.
The rear windows upon all the floors of the house open in the
direction of the railroad tracks that lead from defendant's tunnel.
The south portal of this tunnel opens within square 693, and near
its 549 northeasterly corner, and the tunnel extends thence in a
northeasterly direction, passing under the Capitol and Library grounds and
First street N. E., to the Union Station at Massachusetts avenue.
There are two sets of railroad tracks in the tunnel and leading
from it, and as these emerge from the south portal they extend in a
general southwesterly direction up an incline or grade across the central
portion or square 693 on to an elevated structure which carries the tracks
over and beyond South Capitol street.
The tunnel and these tracks are used for the passage of trains
running both northwardly and southwardly, about thirty each day, all of
them being passenger trains with the exception of an occasional shifting
engine. The trains frequently
pass in and out of the tunnel without stopping, but trains also very often
stop at or near a switch tower that is situate near the center of square
693. From the nearest portion of plaintiff's house to the center
of the south portal, the distance in a straight line is about 114 ft.,
there being three intervening dwelling houses, two of which have been
purchased and are now owned by defendant.
From the rear end of plaintiff's lot to the middle of the tracks
southwestwardly from the portal the distance in a straight line is about
90 ft. Plaintiff's property has been damaged by the volumes of dense black
or gray smoke, and also by dust and dirt, cinders and gases, emitted from
the trains while passing over the tracks and in or out of the tunnel, or
standing upon the tracks near the signal tower.
There is a fanning system installed in the tunnel which causes the
gases and smoke emitted from engines while in the tunnel to be forced out
of the south portal, and these gases and smoke contaminate the air, and
also add to the inconvenience suffered by plaintiff in the occupation of
his property. His house was
pleasant and comfortable For purposes of occupation before the
construction of the tunnel and tracks, but since then it has not only
depreciated in value, but the tenant
550 removed therefrom, and plaintiff was obliged to occupy the house
himself by reason of his inability to rent it. The property has
depreciated from a value of about $5,500 to about $4,000, and the rental
value from $30 per month to $20 per month.
The furniture and other belongings in the house have been
depreciated from a value of $1,200 to $600, all of which depreciation is
due to the presence of smoke, cinders, and gases emitted from passing
trains and from the mouth of the tunnel, which smoke, cinders, and gases
enter the dwelling house and settle upon the furniture and other personal
property contained in it, contaminating the air and rendering the house
objectionable as a habitation. The
house has also been damaged by vibrations caused by the movement of trains
on the track or in the tunnel, resulting in cracking the walls and wall
paper, breaking glass in the windows, and disturbing the peace and slumber
of the occupants.
The
defendant, the Washington Terminal Company, is the owner of the tunnel and
of the tracks therein, but its ownership of tracks ceases at the south
portal. The tracks extending therefrom in a southwesterly direction
are owned and used by other railroad companies, but the movement of the
trains is controlled by defendant.
The
tunnel and the tracks leading from it across square 693 were located and
constructed and are now maintained under the authority of acts of Congress
of February 12, 1901, and February 28, 1903 (31 Stat. at L. 774, chap.
354; 32 Stat. at L. 909, chap. 856), in accordance with plans and
specifications approved by those acts.
No claim is made by plaintiff that the tunnel, the tracks in square
693, and the trains operated therein and thereon, were constructed,
operated, or maintained in a negligent manner; and it is conceded that the
tunnel and tracks were built upon property acquired by purchase or
condemnation proceedings, and were constructed under authority of the acts
of Congress 551 and of permits
issued by the Commissioners of the District of Columbia.
Such
being the essential facts to be deduced from the evidence, we have reached
the conclusion, for reasons presently to be stated, that with respect to
most of the elements of damage to which the plaintiff's property has been
subjected, the courts below correctly held them to be damnum absque
injuria; but that with respect to such damage as is attributable to the
gases and smoke emitted from locomotive engines while in the tunnel, and
forced out of it by means of the fanning system through a portal located
so near to plaintiff's property that these gases and smoke materially
contribute to injure the furniture and to render the house less habitable
than otherwise it would be, there is a right of recovery.
The
acts of Congress referred to, followed by the construction of the tunnel
and railroad tracks substantially in the mode prescribed, had the effect
of legalizing the construction and operation of the railroad, so that its
operation, while properly conducted and regulated, cannot be deemed to be
a public nuisance. Yet it is
sufficiently obvious that the acts done by defendant, if done without
legislative sanction, would form the subject of an action by plaintiff to
recover damages as for a private nuisance.
At
the same time, there is no exclusive and permanent appropriation of any
portion of plaintiff's land, which, indeed, does not even abut upon
defendant's property. The
acts of Congress do not in terms provide for the payment of compensation
to property owners damnified through the construction and operation of the
tunnel and railroad lines in question, except to those whose lands, or a
portion thereof, were necessarily appropriated.
For damages, whether direct or consequential, to noncontiguous
parcels such as that of plaintiff, there is no express provision.
But § 9 of the act of 1903 (32 Stat. at L. 916, chap. 856)
authorizes the Terminal Company to acquire, by purchase or condemnation, '
552 the lands and property necessary for all and every the purposes
contemplated' by the several acts of Congress under which the tunnel and
railroad were constructed and are operated.
This grant of the power of condemnation is very broad, but it has
not been acted upon by the company in the case of the present plaintiff.
And since he is not wholly excluded from the use and enjoyment of
his property, there has been no 'taking' of the land in the ordinary
sense.
The
courts of England, in a series of decisions, have dealt with the general
subject now under consideration. Rex
v. Pease, 4 Barn. & Ad. 30, 40, 1 Nev. & M. 690, 2 L. J. Mag. Cas.
N. S. 26, 22 Eng. Rul. Cas. 71; Vaughan v. Taff Vale R. Co. 5 Hurlst.
& N. 679, 29 L. J. Exch. N. S. 247, 6 Jur. N. S. 899, 2 L. T. N. S.
394, 8 Week. Rep. 549, 1 Eng. Rul. Cas. 296; Jones v. Festiniog R. Co. L.
R. 3 Q. B. 733, 9 Best & S. 835, 37 L. J. Q. B. N. S. 214, 18 L. T. N.
S. 902, 17 Week. Rep. 28; Hammersmith
c. r. c/o. v. Brand, L. R. 4 H. L. 171, 38 L. J. Q. B. N. S. 265,
21 L. T. N. S. 238, 18 Week Rep. 12, 1 Eng. Rul. Cas. 623, 7 Eng. Rul. Cas.
380; Metropolitan Asylum Dist. v. Hill, L. R. 6 App. Cas. 193, 201, 203,
50 L. J. Q. B. N. S. 353, 44 L. T. N. S. 653, 29 Week. Rep. 617, 45 J. P.
664, 16 Eng. Rul. Cas. 556; London, B. & S. C. R. Co. v. Truman, L. R.
11 App. Cas. 45, 55 L. J. Ch. N. S. 354, 54 L. T. N. S. 250, 34 Week. Rep.
657, 50 J. P. 388, 22 Eng. Rul. Cas. 80.
The rule to be deduced from these cases is that while no action
will lie for an invasion of private rights necessarily resulting from the
establishment and operation of railways and other public works under the
express sanction of an act of Parliament, yet that such acts are to be
strictly construed so as not to impair private rights unless the
legislative purpose to do so appears by express words or necessary
implication. In short,
Parliament, being omnipotent, may authorize the taking of private property
for public use without compensation to the owner; but the courts decline
to place an unjust construction upon its acts, and will not interpret them
as interfering with rights of private property unless the language be so
clear as to admit of no other meaning.
But
the legislation we are dealing with must be construed in the light of the
provision of the 5th Amendment
-- 'Nor shall private property be taken for public use without just
compensation' -- and is not to be given
553 an effect inconsistent with its letter or spirit.
The doctrine of the English cases has been generally accepted by
the courts of this country, sometimes with scant regard for distinctions
growing out of the constitutional restrictions upon legislative action
under our system. Thus, it
has been said that 'a railroad authorized by law and lawfully operated
cannot be deemed a private nuisance;' that 'what the legislature has
authorized to be done cannot be deemed unlawful,' etc.
These and similar expressions have at times been indiscriminately
employed with respect to public and to private nuisances.
We deem the true rule, under the 5th Amendment, as under state
constitutions containing a similar prohibition, to be that while the
legislature may legalize what otherwise would be a public nuisance, it may
not confer immunity from action for a private nuisance of such a character
as to amount in effect to a taking of private property for public use.
Pennsylvania R. Co. v. Angel, 41 N. J. Eq. 316, 329, 56 Am. Rep. 1,
7 Atl. 432; Costigan v. Pennsylvania R. Co. 54 N. J. L. 233, 23 Atl. 810;
Cogswell v. New York, N. H. & H. R. Co. 103 N. Y. 10, 57 Am. Rep. 701,
8 N. E. 537; Garvey v. Long Island R. Co. 159 N. Y. 323, 70 Am. St. Rep.
550, 54 N. E. 57; Bohan v. Port Jervis Gaslight Co. 122 N. Y. 18, 29, 9
L.R.A. 711, 25 N. E. 246; Sadlier v. New York, 40 Misc. 78, 81 N. Y. Supp.
308.
But
the question remains, in cases of the class now before us, What is to be
deemed a private nuisance such as amounts to a taking of property? And by a great and preponderant weight of judicial authority
in those states whose constitutions contain a prohibition of the taking of
private property for public use without compensation, substantially in the
form employed in the 5th Amendment, it has become established that
railroads constructed and operated for the public use, although with
private capital and for private gain, are not subject to actions in behalf
of neighboring property owners for the ordinary damages attributable to
the operation of the railroad, in the absence of negligence.
Such roads are treated as
554 public highways, and the proprietors as public servants, with the
exemption normally enjoyed by such servants from liability to private
suit, so far as concerns the incidental damages accruing to owners of
nonadjacent land through the proper and skilful management and operation
of the railways. Any diminution of the value of property not directly invaded
nor peculiarly affected, but sharing in the common burden of incidental
damages arising from the legalized nuisance, is held not to be a 'taking'
within the constitutional provision.
The immunity is limited to such damages as naturally and
unavoidably result from the proper conduct of the road and are shared
generally by property owners whose lands lie within range of the
inconveniences necessarily incident to proximity to a railroad.
It includes the noises and vibrations incident to the running of
trains, the necessary emission of smoke and sparks from the locomotives,
and similar annoyances inseparable from the normal and non-negligent
operation of a railroad. Northern Transp. Co. v. Chicago, 99 U. S. 635, 641, 25 L. ed.
336, 338; Beseman v. Pennsylvania R. Co. 50 N. J. L. 235, 240, 13 Atl.
164, affirmed in 52 N. J. L. 221, 20 Atl. 169.
That
the constitutional inhibition against the taking of private property for
public use without compensation does not confer a right to compensation
upon a landowner, no part of whose property has been actually
appropriated, and who has sustained only those consequential damages that
are necessarily incident to proximity to the railroad, has been so
generally recognized that in some of the states (Arkansas, California,
Colorado, Georgia, Illinois, Louisiana, Mississippi, Missouri, Montana,
Nebraska, North Dakota, South Dakota, Texas, West Virginia, and Wyoming
are, we believe, among the number) constitutions have been established
providing in substance that private property shall not be taken or damaged
for public use without compensation.
The
immunity from liability for incidental injuries is 555 attended with a considerable degree of hardship to the private
landowner, and has not been adopted without some judicial protest.
But, as pointed out by Chief Justice Beasley in the Beseman Case,
50 N. J. L. at p. 238, if railroad companies were liable to suit for such
damages upon the theory that with respect to them the company is a tort
feasor, the practical result would be to bring the operation of railroads
to a standstill. And, on the
whole, the doctrine has become so well established that it amounts to a
rule of property, and should be modified, if at all, only by the lawmaking
power.
But
the doctrine, being founded upon necessity, is limited accordingly.
This court, in a leading case that we deem controlling upon the
questions now at issue, had occasion to recognize this, and at the same
time to apply the distinction between public and private nuisances with
respect to the private right of action.
In Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U. S.
317, 27 L. ed. 739, 2 Sup. Ct. Rep.
719, the court, while recognizing (p. 331) that the legislative
authority for operating a railway carried with it an immunity from private
actions based upon those incidental inconveniences that are unavoidably
attendant upon the operation of a railroad, nevertheless sustained the
right of action in a case where a building for housing and repairing
locomotive engines was unnecessarily established in close proximity to a
place of public worship, and so used that the noises of the shop and the
rumbling of the locomotive engines passing in and out, the blowing off of
steam, the ringing of bells, the sound of whistles, and the smoke from the
chimneys, created a constant disturbance of the religious exercises.
The court (speaking by Mr. Justice Field) held that 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
556 of others; and that whatever the extent of the authority
conferred, it was accompanied with the 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. In the language of
the opinion: '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
reasoning proceeded upon the ground (p. 332) that no authority conferred
by Congress would justify an invasion of private property to an extent
amounting to an entire deprivation of its use and enjoyment, without
compensation to the owner; 'nor could such authority be invoked to justify
acts creating physical discomfort and annoyance to others in the use and
enjoyment of their property, to a less extent than entire deprivation, if
different places from those occupied could be used by the corporation for
its purposes, without causing such discomfort and annoyance;' and hence
that the legislative authorization conferred exemption only from suit or
prosecution for the public nuisance, and did not affect 'any claim of a
private citizen for damages for any special inconvenience and discomfort
not experienced by the public at large.'
The
present case, in the single particular already alluded to -- that is to
say, with respect to so much of the damage as is attributable to the gases
and smoke emitted from locomotive engines while in the tunnel, and forced
out of it by the fanning system therein installed, and issuing from the
portal located near to plaintiff's property in such manner as to
materially contribute to render his property less habitable than otherwise
it would be, and to depreciate it in value; and this without, so far as
appears, any real necessity existing for such damage -- is, in our
opinion, within the reason and authority of the decision just cited.
This case differs from that of the Baptist Church,
557 in that there the railroad company was free to select some other
location for the repair shop and engine house; while here the evidence
shows that the location of the tunnel and its south portal was established
pursuant to law, and not voluntarily chosen by defendant.
This circumstance, however, does not, as we think, afford
sufficient ground for a distinction affecting the result. The case shows
that Congress has authorized, and in effect commanded, defendant to
construct its tunnel with a portal located in the midst of an inhabited
portion of the city. 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 5th 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 preventible by the employment at reasonable expense of
devices such as 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, chap. 856, § 9), and pending its
acquisition defendant is responsible.
If the damage is readily preventible, the statute furnishes no
excuse, and defendant's responsibility follows on general principles.
No
doubt there will be some practical difficulty in distinguishing 558 between that part
of the damage which is attributable to the gases and smoke emitted from
the locomotive engines while operated upon the railroad tracks adjacent to
plaintiff's land, and with respect to which we hold there is no right of action, and damage that arises from the gases and
smoke that issue from the tunnel, and with respect to which there appears
to be a right of action. How
this difficulty is to be solved in order to determine the damages that
should be assessed in this action, or the compensation that should be
awarded in case condemnation proceedings are resorted to, is a question
not presented by this record, and upon which, therefore, no opinion is
expressed.
Judgment
reversed and cause remanded to the Court of Appeals, with directions to
reverse the judgment of the Supreme Court of the District and remand the
cause to that court with directions for a new trial, and for further
proceedings in accordance with the views above expressed.
Mr.
Justice Lurton dissents.
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