Cogswell v. New York, New Haven & Hartford Railroad

and common use of property, provided such use is reasonable, both as respects the owner of the property and those immediately affected by the use, in view of time, place and other circumstances. It is in many cases difficult to draw the line and to determine whether a particular use is consistent with the duties and burdens arising from vicinage, or whether it inflicts any injury for which the law affords a remedy.

There is, however, upon the evidence and findings in this case no room for doubt. The plaintiff, from 1870, has been the owner of a house on East Forty-sixth street, in the city of New York, used as a private residence, of the value at that time of at least the sum of $20,000. In 1872 the defendant, the New York and New Haven Eailroad Company, purchased a lot adjacent to the lot of the plaintiff, extending from Forty-sixth to Forty-seventh streets, and bounded on the west by Fourth avenue, and erected thereon an engine-house and coal-bins for the use of its road, and since the year 1872, has used the engine-house for the reception, sheltering, storing, cleaning, oiling, dumping, repairing and firing its locomotives, and the coal-bins for coaling the same.

The engine-house was designed to accommodate eleven locomotives, and has eleven smoke-stacks, extending above the roof to about the height of the third-story window of the plaintiff’s house. The court found that the engine-house and coal-bins were so constructed and used by the defendant as necessarily to cause damage from the use thereof to the plaintiff’s dwelling house, and that the coal-bins are unprovided with sufficient covering to prevent the dust of the coal from time to time stored therein and removed therefrom by defendant, from passing into and upon the plaintiff’s land and dwelling house.

The court further found that there is now, and at all times since 1872 has been emitted from the engine-house and smoke-stacks, and from the defendant’s engines in the engine-house, hurtful and offensive gases, smoke, soot and cinders, and coal dust from the coal-bins, and that the same pour down upon, and are borne by the winds into and upon. the plaintiff’s dwelling house and premises, filling the house with smoke, soot and cinders, injuring the furniture and clothing therein, rendering the air offensive and unwholesome, and the house uncomfortable and unhealthy as' a habitation, and greatly reducing the rental value of the premises. The evidence fully justified the findings of the court. It was shown that the house was rendered untenantable, and could not be rented, although before the erection of the engine-house, it had been rented for $2,500 a year; that the plaintiff’s son became ill in consequence of

the unwholesome atmosphere, and that she was compelled to remove him from the house on that account, and that the value of the house had diminished one-half, a depreciation caused in great part at least by the maintenance and use of the engine-house. In short, the engine-house as used practically deprived the plaintiff of the use of the house as a residence. The defendant did not physically eject her therefrom, but by filling it with smoke and dust, .and by corrupting and tainting the atmosphere with offensive gases, made fife therein uncomfortable and unsafe.

It is scarcely necessary to cite authorities to show that the engine-house as used was, within every definition, a nuisance, for which, as between individuals, an action would he for damages, and for which a court of equity would afford a remedy by injunction. See St. Helen's Smelting Co. v. Tipping, 11 H. L. Cas., 642; Fish v. Dodge, 4 Den., 311 ; Campbell v. Seaman, 63 N. Y., 568 .

• In Badcliffy. Mayor, etc., 4 N. Y., 198 , a case which is often cited to sustain the doctrine that consequential injuries to private property, from the prosecution of public improvements, do not give a right of action, Judge Bronson, referring to the general rule that a man may do what he wifi with his own property, said : “ He may not, however, under color of enjoying his own, set up a nuisance which deprives another of the enjoyment of his property.”

The correctness of the findings of fact, made by the court, is not questioned by the defendant. The court placed its judgment, denying relief, upon the ground that defendant was a railroad corporation, authorized by law to acquire real estate for an engine-house; that an engine-house .at the point, where this engine-house was erected was necessary for the operation of its road, and that, in the construction and use of the engine-house and coal-bins, it had exercised all practicable care. The finding of law from these premises was that “whatever damage has resulted to the plaintiff, or her property by reason of defendant’s use and occupation of its engine-house and coal-bins, is damnum . absque injuria.

It is manifest that, if this judgment can stand, a most serious injury is inflicted by the defendant upon the plaintiff, for which she has no redress. Her premises are subjected to a burden in the nature of a servitude in favor of the defendant, which seriously impairs the value and enjoyment of her property. The principle upon which the court below proceeded was that what the legislature has authorized the defendant to do can neither be a public nor private wrong; in other words, the legislature has authorized the maintenance of this nuisance by the defendant, and the. plaintiff must bear the consequence. The court below, in

■denying any relief to the plaintiff, of course assumed that the legislative authority, and the act of the defendant thereunder, resulting in flooding the plaintiff’s premises with soot, smoke and noxious gases, was not a taking of the plaintiff’s property within the constitution.

We place our judgment in this case on the ground that the legislature has not authorized the wrong of which the plaintiff complains, and it is, therefore, unnecessary to determine whether the legislature could have authorized it consistently with the principles of the constitution for the security of private rights, without providing for compensation. The legislative authority under which the defendant seeks to justify the maintenance of the nuisance in question is found in section 6, chapter 143 of the Laws of 1848, entitled “An act to amend an act entitled ‘An act relating to the New York and Harlem Railroad Company,’ passed May fI, 1840.” That section authorizes the defendant, the New York and New Haven Railroad Company, to enter upon and run its cars by the power or force of steam, animals or any mechanical power, over the road of the New York and Harlem Railroad Company, from the point of junction of the two roads in Westchester county, to and into the city of New York “uponsuch terms and to such point as has been or may hereafter be agreed upon by and between said companies.” The defendant is a Connecticut corporation. Its road extends from New Haven, in that State, to a point on the Harlem railroad, in Westchester county in this state. It constructed the part of its road in this state, from the state line to its junction with the Harlem railroad at Williams Bridge, under the authority of the act of the legislature, chapter 195 of the Laws of 1846. When the act of 1848 was passed, the two companies had entered into an agreement for the use by the defendant, for its cars, of the tracks of the Harlem railroad from Williams Bridge to the city of New York, in which among other things the New York and Harlem Railroad Company agree to furnish the defendant corporation room for their engine-house at Thirty-third and Forty-second streets, not to exceed one-half of the real estate of the former company at that place, for which the defendant was to pay as provided in the agreement. It is claimed that the -legislature has authorized the erection and use of the defendant’s structure on Forty-sixth street. The only express authority conferred by the legislature is found in the sixth section of the act of 1848, above referred to. The authority conferred by that section, on the face of it, is simply an authority to the defendant to run their cars on the Harlem railroad, to the city of New York, upon such terms as may be agreed upon between the two companies. The most ob

vious purpose of this section was to confer corporate capacity upon the defendant to do that which, without legislative authority, it could not do, viz.: operate its road beyond the terminus fixed in the act of 1846, from Williams Bridge to the city of New York. But even this authority was not absolute. It could be exercised only in case, and upon the terms of an agreement between the two companies, for the use by the defendant of the tracks of the Harlem railroad. Upon this slender authority is based the claim of the defendant that the legislature has authorized the injury in question. The argument in brief is: the legislature has authorized the defendant to run its trains into the city of New York, over the Harlem road; it cannot do' this without an engine-house conveniently located; the power to acquire lands for and to construct an engine-house is, therefore, incidental to the power expressly given; the company has exercised due care in its location, construction and maintenance; the annoyances suffered by the plaintiff are a necessary consequence of its use, and, therefore, the principle applies “that an act done -under lawful-authority, if done in a proper manner, can never subject the party to an action, whatever consequences may follow.” We shall pass without examination the question whether the authority given to the defendant to purchase-land for an engine-house is implied in the power conferred in the sixth section of the act of 1848, to enter into an agreement with the Harlem railroad for the use of the tracks of that road, and to run its cars thereon, to the city of New York.

For the purpose of this case we shall assume that the general power conferred included the latter power as incident. It is no doubt a settled principle of the law that many things may be done by the owner of land, causing consequential damages to his neighbor, for which the law affords no remedy. The cases embraced within this rule are those either where what was done was in the lawful and reasonable use by an owner of land of his own property, or where the damages suffered, although by possibility attributable to the wrongful act ‘ of another, were too remote therefrom to justify the court in treating' the one as the sequence Of the other. The case before us belongs to neither of these categories. The defendant’s engine-house, as maintained, was a palpable nuisance, causing special injury to the plaintiff, for which, by the general rule of the common law, she has a right of action. The defendant, however, does not rely for its justification upon the ordinary rule governing the rights of adjoining proprietors, but, as we have said, rests upon the claim that the legislature has authorized the acts of which the plain

tiff complains, and has, therefore, made that lawful which otherwise might be unlawful, and has taken away any remedy which the plaintiff otherwise might have had.

It is undoubtedly true that there are cases in which the legislature in the public interest may authorize and legalize the doing of acts resulting in consequential injury to private property, without providing compensation, and as to which the legislative sanction may be pleaded in bar of any claim for indemnity. Indeed, such is the transcendent power of parliament, that it is the settled doctrine of English law that no court can treat that as a public or private wrong which parliament has authorized, and, consequently, as stated by Blackburn, J., in Hammersmith, etc., Railway Co. v. Brand (4 H. L. Cas. [Eng. & I. App.], 171), “the person who has sustained a loss by the doing of that act is without remedy, unless in so far as the legislature has thought it proper to provide for compensation.” The legislative power in this country is subject to restrictions, but, nevertheless, private property is frequently subjected to injury from the execution of public powers conferred by statute, for which there is no redress. The case of consequential injuries resulting from street improvements authorized by the legislature is a familiar example.

In Radcliffe v. Mayor, etc., supra, which is a leading case, the corporation of Brooklyn laid out, opened and graded a street, under an authority contained in the charter, and the- court held that in the absence of negligence the city was not hable for consequential damages suffered by the plaintiff from the sliding down of his land, caused by the cutting down of the street, and thereby removing the lateral support. The court, in its opinion, declared that it had never been considered that consequential damages to private property, resulting from the opening and improving streets or highways, or other work of a public nature, could be recovered. The case has been frequently followed, and its authority completely established by repeated decisions in this state. It is an application of a principle well settled that private interests must yield to the public welfare, but the case carries to the utmost Emit the right of the legislature, for public reasons, to interfere with private property to the injury of the owner, without making compensation.

The case of Bellinger v. New York Central R. R. Co. ( 23 N. Y., 42 ) is another case frequently cited to support the claim that a use of property authorized by the legislature cannot, in the absence of negligence, constitute an actionable injury. It was an action brought for the flooding of the plaintiff’s land on the Mohawk flats, caused, as

was charged, by the turning of the water of the West Canada creek out of its natural course by an embankment constructed for the use of the railroad over the lowlands west of the creek. The Utica and Schenectady Railroad Company, to whose rights and obligations the defendant succeeded, was created a corporation by chapter 294 of the Laws of 1833, with power to construct a railroad between Schenectady and Utica, “ on the north side of the Mohawk river, as far as the village of Herkimer.” The charter authorized the directors to locate the hue where it would be most advantageous for the road and file a certificate of location, and the charter declared that the line so located should be deemed the line on which the road should be built. The company located its fine on the creek at the point in question. It constructed a bridge across the creek five hundred feet long, and also left a water-way eighty-two feet wide in the embankment for the passage of water in time of flood. The freshet which flooded the plaintiff’s land occurred at the time of breaking up of the ice of the creek in the spring. It was shown that ice and water flowed and was forced upon the plaintiff’s premises at the breaking up of the creek in If 99, and again in 1813, and on three occasions after the road was built, between 1835 and 1866. There was some evidence tending to show that the flooding in question was occasioned by the embankment and the want of ^sufficient apertures for the passage of the water. The plaintiff recovered a verdict, and the judgment was reversed by this court on the ground of the rejection of .evidence offered by the defendant, bearing upon the point whether the embankment and bridge were carefully and skillfully constructed. ít was claimed by the counsel for the plaintiff that this was an immaterial issue. The court, in its opinion, conceded that according to the general rule-of law, if the structure of the defendant caused the injury, it would be hable, irrespective of negligence; but held that, as the company was authorized by statute to construct its road across the creek at the point" where it was located, it was liable only for such consequences as were attributable to a failure to exercise due care and skill in executing the-statute authority. •

The case of Bellinger v. New York Central R. R. Co. is perhaps the strongest case to be found in our reports of the application of the doctrine that a statutory authority justifies acts which otherwise would give a right of action. But it will be noticed that it was a case where the line of' the road was fixed by the charter. It was necessary, in constructing the road on that line, to cross the creek on a bridge, and the lowlands upon an embankment. The flooding of the plaintiff’s premises was an unusual occurrence,.

and the evidence was very slight that it was caused by the structures of the defendant. It was under these circumstances that the court reached its conclusion that the damages suffered by the plaintiff were not recoverable in the absence of negligence on the part of the defendant in the construction of the road. But the statutoiy sanction which will justify an injury to private property must be express, or must be given by clear and unquestionable implication from the powers expressly conferred, so that it can fairly be said that the .legislature contemplated the doing or the very act which occasioned the injury. This is but an application of the reasonable rule that statutes in derogation of private rights, or which may result in imposing burdens upon private property, must be strictly construed. For it cannot be presumed from a general grant of authority, that the legislature intended to authorize acts to the injury of third persons, where no compensation is provided, except upon condition of obtaining their consent. This construction of statutory powers applies with peculiar force to grants of corporate powers to private corporations, which are set up as a justification for acts to the detriment of private property.

In the case of Gardner v. The Trustees of the Village of Newburgh ( 2 Johns. Ch., 162 ), the chancellor granted an injunction to prevent the village of Newburgh from diverting the water of a stream, under an act of the legislature which authorized in general terms the taking of water for the use of the village, and which provided for compensation-to the owner of land on which the spring or source of supply was situated, but made no provision for compensation to the owner of land below, through which the stream passed. When this case arose there was no provision in the constitution of the state prohibiting the taking private property for public use without compensation. But the chancellor held that the making of compensation was an-indispensable attendant of the exercise of the public right, and what is more material to our present purpose, he declared that the legislature could not have intended, by the general powers conferred, to violate or interfere with private rights.

The same principle Is stated with unusual force of language by Chief Justice Marshall in United States v. Fisher ( 2 Cranch, 358 ). He says: “Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness to induce a court of justice to suppose a design to effect such objects.”

What may be a sufficient statutory sanction for acts

which injuriously affect general public rights or individual property is illustrated by cases which hold that an authority to construct a railroad and use locomotives thereon takes away any remedy by indictment or private action, for such consequences as necessarily result from the use of locomotives, such as noise, vibration, etc., although no compensation is provided. Rex v. Pease, 4 Barn. & Adol., 30; Vaughan v. Taff Vale Co., 5 Hurlst. & Norm., 679; Hammersmith Railway Co. v. Brand, supra.

_ There are two recent English cases which apply with great distinctness the principle that a statutory sanction cannot be pleaded in justification e of acts which, by the general rules of law, constitute a nuisance to' private property, unless they are expressly authorized by the statute under which the justification is made, or by the plainest or most necessary implication from the powers expressly conferred. These are the cases of Hill v. The Managers of the Metropolitan Asylum District (4 Q. B. Div., 433; S. 0. on appeal, 6 App. Cas., 193), and Truman v. London and Brighton Bailway Co. (25 Ch. Div., 423). The case of Hill v. Managers of the Metropolitan Asylum District was an action for damages and for an injunction to restrain the use of a small-pox hospital, established by the defendants under direction of the poor law board, under authority of the metropolitan poor act of 1867. The act of parliament authorized the erection of asylums for sick, infirm and insane paupers in the metropolitan asylum district in London, to be designated by the poor law board, and authorized the purchase, leasing or fitting up of buildings for the purpose; and the act referred to small-pox patients as among the class of persons to be provided for. The managers, under the direction of the poor law board, erected a hospital for small-pox patients near premises of the plaintiff. The jury found that the hospital was a nuisance, occasioning damage to the plaintiff. The court, on the hearing, granted an injunction, and the case was appealed to the house of lords, where it received great consideration, and the judgment was affirmed. The defendants justified under the act of parliament. The judges pronouncing opinions conceded that, according to the settled doctrine of the English law, if parliament had expressly authorized the construction of the hospital upon the very site where it was located, its use in the manner and for the purpose contemplated could not be restrained by injunction, except in so far as it was negligent, although such use should constitute a nuisance at common law, and no compensation would be due in respect of injury to private rights unless provided for in the act. But it was held that the statutory sanction sufficient to justify the creation of a nuisance must

be express; that the particular land or site for the hospital must have been defined in the act, or, as held by one of the judges, it must appear that the act, while defining certain general limits, could not be complied with at all without creating a nuisance, and its performance was made imperative. In the house of lords opinions were pronounced by Lord Chancellor Selborne, Lord Blackburn and Lord Watson, all concurring in substantially the same view. Lord Watson said: “If the order of the legislature can be implemented without nuisance they cannot, in my opinion, plead the protection of the statute; and, on the other hand, it is insufficient for their protection that what is contemplated by the statute cannot be done without nuisance, unless they are also able to show that the legislature has directed it to be done. Where the terms of the statute are not imperative, but permissive, when it is left to the discretion of the persons empowered to determine whether the general powers committed to them shall be put into execution or nót, I think the fair inference is that the legislature intended that discretion to be exercised in strict conformity with private rights, and did not intend to confer license to commit nuisance in any place which might be selected for that purpose.”

The case of Truman v. London and Brighton Railway Company was also an action for damages and for an injunction to restrain a nuisance created by the maintenance, by the defendant, of cattle yards at its station at East Croyden. The defendant was authorized by its charter to purchase lands in such places as it should deem eligible for the purpose of providing station yards for loading and unloading cattle, etc. It purchased lands for that purpose adjoining its East Croyden station, but near the dwelling of the plaintiff. The court found that the company acted bona fide in selecting the site, and conducted the business with all practicable care, but also found that it created a nuisance to the plaintiff, and granted the injunction. The case arose after the decision in Hill v. Managers of the Metropolitan Asylum District, and was decided upon the principles there laid down. It is manifest that these cases," if well decided, completely answer the defense in the present case. See, also, Queen v, Bradford Nav. Co. (6 Best & Smith, 631), Attorney-General v. Colney Hatch Lunatic Asylum (L. R., 4 Ch. App., 147), Hooker v„ N. H. and N. R. R. Co. ( 14 Conn., 146 ; S. C., 15 id., 312).

The authority conferred upon the defendant by the sixth section of the act of 1848, to run its trains over the Harlem railroad, was not, however broadly construed, a legis

lative saction to commit a nuisance upon private property. The authority expressly given was not absolute, but conditional upon obtaining the consent of the Harlem railroad. It could not be known by the legislature that the building of an engine-house would necessarily interfere with private rights. However necessary it may be for the defendant that its engine-house should be located where it is, this constitutes no justification for the injury suffered by the plaintiff, nor is it any answer to the action, that it exercises all practicable care in its management. It may have the right, which it claims, to acquire lands by purchase for the accommodation of its business, but it must secure such a location as will enable it to conduct its operations without violating the just rights of others. Public policy indeed requires that in adjusting the mutual relations between railroad companies and individuals, courts should not stand upon the assertion of extreme- rights on either side, but in this case the facts leave no room for doubt that the plaintiff has suffered a substantial and unauthorized injury.

The case of Baltimore and Potomac Railroad Company v. Fifth Baptist Church ( 108 U. S., 317 ), fully supports the conclusion we have reached in the case, and the able opinion of Mr. Justice Field in that case vindicates the right of private property to protection against substantial invasions under color of corporate franchises.

The judgment should.be reversed and a new trial ordered.

All concur.