Townsend v. Norfolk Railway & Light Co.

Keith, P., delivered the opinion of the court. — 24 — The plaintiffs in error brought an action of trespass against the Norfolk Bailway and Light Company, and their declaration states: That they were seized and possessed, as joint owners, of a certain lot of land, with the buildings and improvements thereon, situated on the west side of Cumberland street, in the city of Norfolk, Virginia; that the Norfolk Bailway and Light Company, a corporation organized under the laws of the State of Virginia, owned a certain lot in the city of Norfolk, fronting on Cove street; that the defendant had erected on this lot a power house, equipped with large and heavy machinery, consisting of boilers, engines, dynamos, condensers and generators, for the purpose of generating electric power, and as a part of its equipment of said power house had erected in connection with its buildings three or more metal stacks; that it was the duty of the defendant so to maintain and operate its power house and plant as not to injure or interfere with the comfort, use and enjoyment by the plaintiffs of their property; but disregarding its duty in this behalf, on the first day of August, 1902, and on divers other days prior thereto and continuously up to the present time, the defendant did so wrongfully and unjustly operate and conduct its plant, or power house, that large columns of smoke, dust, cinders, sparks and soot had been emitted from the stacks of the defendant, and thrown, propelled, and hurled against, upon and through the houses of the plaintiffs on the property aforesaid, thereby preventing its proper and useful enjoyment by the plaintiffs; that their property had been made untenantable, and that its rental and salable value had been depreciated ; that the houses of the plaintiffs upon their property, as aforesaid, had been and were being greatly shaken and damaged, in such a manner as to cause the same to become and be uncomfortable, dangerous, and uninhabitable; that by reason of the premises the property of the plaintiffs had deteriorated in value, both — 25 — as income-producing and as marketable property ; and, further, that the defendant, by allowing the electric current from the wires and conduits, or on return circuit, to escape from its wires, or returning by ground circuit, to run over and through the pipes of metal placed to carry water and gas to the houses of plaintiffs, has caused the metal pipes, thus acting as conductors of electricity, to be eaten up and destroyed; and that although the defendant has been often requested by the plaintiffs to refrain and desist from the wrongful and unjust operation and management of its said plant, or power house, in the several ways hereinbefore described, yet it has refused to desist from the said wrongful and unjust operation and management of. its plant, as aforesaid, to the damage of the plaintiffs $2,000. 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 — 26 — corporate the Old Dominion Electrical Development and Power Company,” it was provided that the said Old Dominion Electrical Development and Power Company should have power to erect, maintain and operate plants in this State for the generation of electricity and the supply of electric current for its own use and for sale to persons, natural or artificial, desiring to use the same for heat, light or power, or any and all uses to which the electric current might then or at any time thereafter be applicable, and might manufacture, use and sell, distribute and furnish the same for said purposes, and all electrical supplies of all kinds, to all and any persons and corporations, upon such terms as might be agreed npon by and between the contracting parties ; that by the seventh section of the act last above mentioned, it was provided that the Board of Directors of the Old Dominion Electrical Development and Power Company should have the power to change the name of that company and to adopt such other name as they might deem proper upon the fulfillment of certain specified conditions; that in pursuance of said power the Board of Directors changed the name of the Old Dominion Electrical Development and Power Company, so that it became and was the Norfolk and Ocean View Railway Company; that said last mentioned company, by virtue of the powers granted to it by its acts of incorporation, acquired the works, property, rights, privileges and franchises of the Virginia Electric Company; and that said Norfolk and Ocean View Railway Company thereby became and was entitled, empowered and authorized to do and perform -any, all and singular, the acts referred to in the act of incorporation of the Virginia Electric Company, as well as any, all and singular the acts requisite, necessary or proper in connection with the powers, privileges and rights of the said company in the matter of carrying on the business of the said company. The plea further avers that on the 2d day — 27 — of November, 1899, by an agreement entitled “Agreement of consolidation of the Norfolk Street Railroad Company and tlie Norfolk and Ocean View Railway Company under tlie name of the Norfolk Railway and Light Company,” the said Norfolk Railway and Light Company became and was possessed, end still is possessed, of any, and all and singular, the rights, franchises, privileges, powers, works, properties, and all other interests of any sort whatever of the said constituent companies, the Norfolk Street Railroad Company and the Norfolk and Ocean View Railway Company, and especially and particularly the particular powers, privileges and rights hereinbefore more fully specified as to the operation and maintenance of the plants of the said companies; that under the said consolidation agreement the defendant became and was possessed, and still is possessed, of the said plant, power house and manufactory, which is the same plant, power house and manufactory as are complained of in the declaration of the plaintiffs; that not only has it obtained legislative sanction and authority for the operation of the said plant, power house and manufactory, machinery and boilers, but that furthermore, at divers times, the defendant has obtained permission and authority from the councils of the city of Norfolk to install the said machinery and boilers in its power house and manufactory; and further avers that, pursuant to the legislative and municipal authority had and obtained, as aforesaid, it lias ever since operated, and still continues to operate, its said plant in a proper, careful, reasonable, and suitable manner; that it is necessary to the proper carrying on of defendant’s business to operate and maintain the said power house, manufactory and plant in the manner in which it has been, and is being, operated; and that it has done no damage and occasioned no discomfort that is not the natural, proximate, inevitable and necessary result of such proper, careful, reason — 28 — ■able and suitable operation, without this that the said defendant is guilty of the said supposed grievances, or any of them, in manner and form as the said plaintiffs hath above thereof complained, and of this it puts itself upon the country. 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 — 29 — the useful and proper enjoyment of the property been impaired; it had been rendered untenantable and its value diminished. 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. — 30 — Beseman v. Pennsylvania Railroad Co., 13 Atl. 164, from the Supreme Court of New Jersey, is strikingly in point. That was a suit for damages done to the houses and lands of plaintiff by the running of defendant’s trains, to which the defendant replied that it acted under franchises derived from the public grant, and that it had built its road and run its trains, carrying merchandise and freight, near to the lands of the plaintiff, doing the plaintiff no more damage than that which necessarily resulted from the transaction of such acts and business; and that for such incidental and unavoidable damage it was not responsible. The plaintiff contended that with respect to private property a railroad is per se a nuisance whenever it throws a detriment, such as would be actionable at common law, on such property. Upon this the court said: “That this proposition, on which the plaintiff’s case rests, is a most momentous one, is at once apparent. If it should be sustained, an illimitable field of litigation would be opened. If a railroad, by the necessary concomitants of its use, is an actionable -nuisance with respect to the plaintiff’s property, so it must be as to all ocher property in its vicinity. It is not only those who are greatly damnified by the illegal act of another to whom the law gives redress, but its vindication extends to every person who is damnified at all; unless, indeed, the loss sustained be so small as to be unnoticeable by force of the maxim de minimis non curat lex. The noises and other disturbances necessarily attendant on the operation of these vast instruments of commerce are wide-spreading, impairing in a sensible degree some of the usual conditions upon which depend the full enjoyment of property in their neighborhood; and consequently, if these companies are to be regarded purely as private corporations, it inevitably results that they must be responsible to each person whose possessions are thus molested. Such a doctrine would make — 31 — these companies, touching such land-owners, general tort-feasors. Their tracks run for miles through the cities of the State, and every land-owner on each side of the track would he entitled to his action; and so, in the less populated districts, each proprietor of lands adjacent to the road would have a similar right; and thus the litigants would be numbered by thousands. It is questionable whether the running of railroads would be practicable if subjected to such a responsibility. Ror is this susceptibility to be sued on all sides the only, or even the worst, consequence of the theory in question; for, if these rights of action exist, it follows, necessarily, that each of the persons in whom they are vested can prevent the continuance of the wrong out of which such rights of action arise. If this plaintiff should recover two or three verdicts against the defendant because of the damage that is inseparable from the running of its trains, there is plainly no ground on which the chancellor could refuse to enjoin a continuance of the nuisance. Ror does there appear to be any relief from such a consequence; the aggrieved landowner would be the master of the situation; for there is no law by force of which the company could take his land in invitum, or compel him to have his damages assessed once for all. In short, the plaintiff’s claim involves the assertion that he can put a stop to the business of the defendant at the point in question.” In concluding his opinion, the learned judge says: “I find no embarrassment in disposing'of the present subject, for I have put railroads in the category of public agents, and have regarded them as possessed of all the immunities, in the particular in question, belonging to such an office.” 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 — 32 — State asserts, the exercise of which is becoming more and more necessary with the growth and development of onr transportation system, of which railroads constitute so essential a part, rests upon the public character of such corporations. A railroad, in the operation of its trains in the transportation of freight and passengers, is in the exercise of a public duty, and should be permitted to apply the same principles of construction when it pleads, for its protection, the- powers conferred upon it by the Legislature, as are urged when the obligations imposed by the same charter are insisted upon in the effort to compel such corporations faithfully to perform the duties which they have assumed with respect to the public. 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. — 33 — But was the defendant in error acting in its public capacity when it committed the grievances complained of ? Every allegation in the declaration is directed against the injuries inflicted by the operation of the power house of the defendant. It is true that an electric railway cannot be operated without a power house; it is true that an engine house is a necessary adjunct to a steam railway; but they are incidents to the operation of the road, with which the public has no concern. 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, — 34 — and is responsible for tbe injurious consequences wbicb may result from its use.” 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 — 35 — and maintenance of its road, and that the engine house and repair shop in question were thus necessary and expedient; that they are skillfully constructed; that the chimneys of the engine house 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.” 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 — 36 — respect to such act, the corporation stood upon the footing of an individual, and was entitled to no superior immunities. What was meant was that while the public was concerned that a railroad company should have all the appliances, including repair shops, to make its public service effective, it was immaterial to the public where such appliances were placed, so long as the service was efficient. All that concerns the public is to have an efficient service in the way of transportation of persons and freight. The company is shielded from responsibility for incidental damages resulting from acts which are necessary to bring about such service. In the Federal decision it was admitted that the company, by virtue of its franchise, had the right to. build repair shops and engine houses, but, having the liberty to choose different sites for its structures, it was bound to select one where they would not inflict an injury upon the property of others.” 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 — 37 — the stahles so as to be a nuisance to their neighbors, and that it was no sufficient defense to say that they had taken all reasonable care to prevent it.” 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.