Ingmundson v. Midland Continental Railroad

Bbonson, J. This is an action for damages occasioned the defendant by reason of causing smoke, noxious vapors, cinders, etc., to be cast upon the property and home of the defendant through the operation of its railroad. At the time of the trial the defendant objected to the introduction of any evidence, upon the ground that the complaint failed to state facts sufficient to constitute a cause of action. The objection was sustained. Thereupon the defendant moved for a directed verdict in favor of the defendant, and this motion was granted. Pursuant thereto, verdict was rendered and judgment entered thereafter in favor of the defendant for dismissal, with prejudice and costs. The plaintiff has appealed from the judgment rendered, and specifies as error the action of the trial court in sustaining the objection and granting the motion of the defendant. The sole question involved upon this appeal is whether the complaint states a cause of action. The complaint alleges that the defendant as a common carrier operates its railroad through the city of Jamestown, on, over, upon, and adjacent to block 29 therein. The plaintiff is the owner of lot 8 in such block, upon which there is a house wherein he dwells with his family. Among other things the complaint alleges as follows with .respect to the engines of the defendant: • “That the said engines moving and passing on and over the premises herein described cause to, and permit to escape large volumes and quantities of gas and other noxious vápors and large quantities of thick, dense, black smoke, oil, and steam, large quantities of cinders, and to throw and scatter the same upon, in, and against said home and premises and lots, make great noises thereat, upon and about said premises and create great vibrations, movements and shaking of the ground in said lot, and of the house thereon, and of plaintiff’s dishes, tables, beds, and furniture therein, and of the said premises and the whole thereof,” etc. This states a cause of action as against a general objection to .the [460] complaint. The owner of land possesses the right to use and enjoy the same, free from the pollution of air thereupon so as to amount to a nuisance. This is a property right incident to his ownership of the land. For violation of this right an action in the nature of trespass to realty may be maintained. Vaughan v. Bridgham, 193 Mass. 392, 9 L.R.A.(N.S.) 695, 79 N. E. 739; Ponder v. Quitman Ginnery, 122 Ga. 29, 49 S. E. 746; Lamm v. Chicago, St. P. M. & O. R. Co. 45 Minn. 71, 10 L.R.A. 268, 47 N. W. 455. See 29 Cyc. 1152, 1154, 1155, 1184, 1187. It therefore follows that the judgment should be reversed, and a new trial ordered, with costs to the appellant. It is so ci’dered......