Killam v. Norfolk & Western Railway Co.

Sims, J., after making the foregoing statement, delivered the following opinion of. the court: There are two questions raised by the assignments of error—(a) one question being whether the provision of the Constitution of Virginia of 1902 on the subject of private property being “damaged” for public uses without just compensation, does or does not, as to new construction and operation since such Constitution went into effect, annul the legislative privilege theretofore possessed by public service corporations, when acting in their public" capacity, to damage private property without liability for damages, to the extent of making “just compensation?”; and (b) the other question being whether in the instant case the dé — 553 — fendant was acting in its public or private capacity in doing the acts complained of, and hence whether it ever possessed the legislative privilege aforesaid pleaded by it in defense of the action? In the view we take of the facts of this case and of the law applicable thereto, it will be necessary for us to consider only the latter question. Such question, it will be observed, is wholly independent of the constitutional question referred to and- rests upon principles which existed prior to the Constitution of 1902, and which have continued to exist since, independently of the constitutional provision mentioned above. Terrell v. C. & O. Ry. Co., 110 Va. 340, 348, 66 S. E. 55. That a public service corporation may act in a private capacity, as distinguished from its public capacity, is now well settled. Townsend, v. Norfolk Ry. & L. Co., 105 Va. 22, 52 S. E. 970; Terrell v. C. & O. Ry. Co., supra; Southern Ry. Co. v. McMenamin, 113 Va. 121, 73 S. E. 980. It is true that if a public service corporation in locating, constructing or changing the construction, and in the operation of its works, acts in its public capacity, general legislative authority given it so to do, when strictly pursued, unless that authority is limited or annulled by constitutional provision in the particular in question, will be construed to confer on the corporation immunity from all liability for damages, not imposed by statute law, for such location, construction, change of construction and operation. Such immunity is inseparably attendent upon the sovereign right of eminent domain which the legislature exercises untrammelled and unabridged, save only as it may be restrained by the Constitution, and it will be construed to be conferred on such a corporation by. necessary implication by general legislative enactment on the subject where the corporation acts in its public capacity. In such case the harsh rule of damnum absaue injuria applies in bar of all — 554 — suits against the corporation for damages not allowed by statute. Fishers v. Seaboard Air Line Railway Co., 102 Va. 363, 46 S. E. 381. But, notwithstanding this rule— It is settled law under the Virginia decisions cited above that, when a public service corporation acts in its private capacity, mere general legislative authority to establish, locate and operate its works will not confer upon it immunity from liability for damages resulting from a construction and operation of such works which would have been deemed a private nuisance at common law. It is further settled by such decisions that if such works were not constructed for the very public duties for which the public service corporation was incorporated, but as incidental, adjunctive or appurtenant thereto merely, however necessary to the performance of the former duties, their operation will be considered and classed as an operation by the corporation in its private capacity. In such case the rule sic utere tuo ut alienum non laedas applies and controls the construction of the legislative enactment. The general legislative authority to locate, construct and operate the latter character of works will not be construed by implication to confer the immunity from liability for damages aforesaid, and the harsh rule of damnum absque injuria has no application. This result,- as pointed out by the opinion of this court delivered by Judge Keith, P., on rehearing in the Townsend Case, supra, may not be logical. As is there said: “Law is not an exact science. It has no invariable standard by which right 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.” It will suffice here to say that such is the law, fixed by the decisions of this court above referred to and by the decisions of other courts of eminent authority therein cited. Now then, was the change of construction and operation — 555 — complained of in the instant case done by the defendant in its private capacity? It is true that the operation complained of in the Townsend Case, supra, was of a power house; in the Terrell Case, supra, it was of a roundhouse; and in the McMenamin Case it was not the transportation of cars through the switch yard which was complained of, but the operation of a coal chute and power house, firing of engines on the yard, and other incidents to the operation of the yard, which were subjects of eomplaint; but these cases involved and were decided upon precisely the same principle which is involved in the classification of a switch yard of a railroad company, upon the inquiry of whether such construction and operation are done in the public or private capacity of such company. In discussing this subject, 1 Lewis on Em. Dom. (3d ed.), at page 450, says: “On general principles, when railroad appurtenances, such as a roundhouse, switch yards, repair shops or terminal plant, cause a nuisance to neighboring property by reason of noise, smoke, cinders, vibration, etc., there may be a recovery. But there are authorities to the contrary.” Examination of the authorities cited by the learned author last quoted pro and con satisfies us that the text is supported by the greater weight of authority and is impregnably sustained by reason and upon principle, where the switch yard operation complained of does not serve a passenger station or freight depot, so that such operation is not required of the railroad company in the discharge of its public duty in connection with such station or depot. Further: The recent case of Matthias v. Minneapolis, etc., R. Co., 125 Minn. 224, 146 N. W. 153, 51 L. R. A. (N. S.) 1017, decided since Mr. Lewis’ estimable work referred to was published, is directly in point on the question we have under consideration as presented in the instant case. — 556 — That case involved a terminal yard, and, as in the instant case, the cars of freight were originally carried over tracks constructed and operated practically on a level. In that case, it is true, the ground acquired by the railroad company for its switch yard was in addition to the ground on which its original main line tracks were located and over .which it for many years transported its cars of freight; but that circumstance, as we shall see, is immaterial. In 1912 the railroad company acquired additional land alongside of its original main line track, on the opposite side of such original right of way from the property of the plaintiff, and constructed a receiving yard on a part of such newly acquired land and a “hump” or embankment on another part of it, with an up-grade similar to that in the instant case, and thereafter diverted its cars of freight containing wheat, coming in over its main line, and “transported” such cars over the “hump,” propelling them by locomotives to the summit of the “hump” to a series of tracks located on such summit, which there received such cars, and by means of the latter tracks, going thence downgrade the cars of wheat were drifted by gravity, without the aid of any locomotives, and moved to the grain elevators, where the contents of such cars of wheat were transferred into the elevators, its destination. The “transportation” of the cars of wheat in the Matthias Case over the grade of the “hump” were precisely as much main line transportation and no more than was the “transportation” of the cars of coal in the instant case, over the “hump.” It was essentially the same operation in both cases and that was a switching operation. In a certain sense, it is true, it was but a link in the transportation of the cars from their point of original shipment, perhaps in a distant State, over the main line of the railroad company until they reached its terminal yard, being detrained at such terminal yard to be retrained and carried over the “hump,” as per — 557 — haps they had been detrained, switched and retrained at various other switch yards at certain ends of. divisions of the company’s main line before they reached the terminal yard in question, where switch yards for that purpose were provided by the company. But it is the construction of such very appurtenances and their operation which are not main line construction or operation, of the very public service for which the railroad company was incorporated, unless they serve stations or depots as aforesaid. They are, in such a case as the Matthias Case and the instant case, essentially merely appurtenant—mere incidental construction and operation—however necessary to the transportation service of the company, and their construction and operation necessarily fall within the same classification and rule applicable thereto as roundhouses, coal chutes, etc., and their operation. Accordingly, in the Matthias Case, the railroad company was held liable in damages for a similar nuisance at common law, with similar results as alleged in the declaration in the instant case. In the Matthias Case, as in the instant case, the entrance or approach to the plaintiff’s property was not interferred with by the railroad company. No part of the plaintiff’s property was taken in either case. In the Matthias Case the new construction and operation complained of was about 600 feet from the plaintiff’s dwelling house, on the opposite side of the railroad’s original main line tracks right of way, whereas in the instant case the operation complained of was on the same side of defendant’s right of way as the plaintiff’s property. The change of method of operating said terminal yard in the instant case consisted, in ultimate fact, in withdrawing the two tracks ascending the rising grade of the “hump ” or embankment from their prior function of serving in part as tracks “for the reception, storing (and) retraining” of cars; and the subsequent use of such tracks for the “trans — 558 — portation” of cars of coal; but such transportation was essentially a rehandling—a retraining—a switching yard transportation. Such “transportation” of such cars necessarily occurs in all handling of through freight in switch yards. It was, in ultimate fact, a switching operation—á switching of coal cars from one receiving yard below, to another receiving yard above, upon the summit of the “hump” or embankment, where “a series of tracks on defendant’s” terminal yard again received such cars, from whence they were drifted, one car at a time, on their way to containers which received their contents in bulk and, in turn, distributed the coal at different places along the piers by depositing it in vessels there awaiting it. Moreover, in the instant case, the conclusion that the new construction and operation of a part of the terminal yard complained of in the declaration was but an operation merely incidental to the duties of the defendant which it performed in its public capacity is apparent when we consider the original relationship of the defendant, and its predecessor in title the Norfolk and Western Railroad: Company, to the Norfolk Terminal Company and its operation of this terminal yard. Prior to the acquisition by the Norfolk and Western Railroad Company and defendant of such yard, their main line terminated at Norfolk. They had not undertaken, nor did their charters impose upon them any duties whatever to operate such yard. The Norfolk Terminal Company constructed and operated this yard under its charter, not as a common carrier, with the public duty imposed by law on all common .carriers of freight on whom the right of eminent domain is conferred by statute, of receiving and transporting all freight tendered to it by the public for transportation. It never assumed or undertook to discharge that public duty, although perhaps its charter was broad enough to have authorized it to do so. It never equipped itself with any depot or other facilities — 559 — for that purpose. The only duty it ever performed or undertook to perform was the mere duty of operating a terminal yard, or switch yard for the defendant’s predecessor, the Norfolk and Western Railroad Company, so as to distribute a portion of a particular kind of freight brought to Norfolk by the last named company, to-wit, the cars of coal destined to vessels of connecting water carriers. In performing such a duty it was not performing a duty to the public such as the Norfolk and Western Railroad Company was then performing as a common carrier in bringing such freight to Norfolk. It was performing only a contract duty to the latter company, and a duty of precisely the same character as might have been performed by a transfer company, incorporated or unincorporated, carrying passengers or freight from the terminus of the Norfolk and Western Railroad Company’s line to wharfs or vessels or to the stations or depots of other carriers located in or near Norfolk (Kentuck, &c., Bridge Co. v. L. & N. R. Co., 37 Fed. 567, 2 L. R. A. 289), or as might have been performed by any other incorporated company supplying the Norfolk and Western Railroad Company, under contract, with light, heat or power, or any other like service incident and even necessary for the performance of its duty as a common carrier. And it was a duty neither the Norfolk and Western Railroad Company nor defendant could have been compelled to allow the Norfolk Terminal Company to perform. (See the case last above cited.) Therefore, when the Norfolk Terminal Company constructed and while it operated said terminal yard, it is plain it was performing no duty which the Norfolk and Western Railroad Company was required by its charter or by other statute to perform. Moreover, it was performing no public duty, imperatively imposed by law on it upon its undertaking such business, but merely (as above stated) a contract duty to the Norfolk and Western Railroad Company, which — 560 — it was p-ermissively authorized to perform by its charter. Clearly, then, the original construction and subsequent operation of said terminal yard by the Norfolk Terminal Company fell within the classification of the power house operation in the Townsend Case, supra. This becomes more apparent when the permissive char- . acter of the charter of the Norfolk Terminal Company, with respect to the location of the terminal yard, is compared with that of the legislative act relied on by the defendant in the Townsend Case. The statute in that case provided: “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 * * In the opinion of this court, delivered by Judge Keith, P., on rehearing, in reference to such legislative authority, it is said: “It will be seen that the language is not imperative, but permissive, and that it does not confer statutory sanction for the commission of a nuisance in any way whatever, and most assuredly cannot be said to confer it in express terms, ‘or by clear and unquestionable implication from the powers given,’ so that it cannot be fairly said that ‘the legislature contemplated the doing of the very act which occasioned the injury, and immunity is not to be presumed from a general grant of authority.’ ” As noted iii the statement of facts about the charter of the Norfolk Terminal Company, it did not designate the location of the terminal yard. By the express terms of such charter, it might have been located “at any point on the Norfolk harbor or Chesapeake Bay.” Hence, upon the reasoning in and upon the principle on which the Townsend Case rests, the construction and operation of said terminal- yard by the Norfolk Terminal Company must be classed as action by that company in its private capacity, merely incidental to the public service of — 561 — the Norfolk and Western Railroad Company, whom it served, and not protected by the shield of legislative privilege aforesaid. This being so, it is apparent that upon the subsequent acquisition of the terminal yard, its operation by the Norfolk and Western Railroad Company, and later by the defendant, the Norfolk and Western Railway Company, was the same character of service to themselves, namely, in their private capacity. The defendant, therefore, would have been liable in damages for the nuisance at common law alleged in the declaration in the instant case under the Townsend Case and other authorities above cited, had the nuisance been caused by the original operation of the terminal yard by it, and is so liable for the new construction and operation of the terminal yard complained of in the plaintiff’s declaration. Such new construction and operation is material in the instant case only as bearing on the beginning of the injury alleged and the consequent commencement of the running of the statute of limitations. The case of Fisher v. Seaboard Air Line Ry. Co., supra, however, is strongly urged by the defendant upon our attention as being opposed to ’the conclusion we have reached, above stated. As pointed out in the Townsend and Terrell Cases, supra; the Fisher Case involved a main line change of construction and operation of the railroad company, and hence action of the latter in its public capacity. As we have noted above, for such action, if in strict pursuance of the legislative authority and performed with due care and skill, the legislative privilege, subject only to such liability as the statute law provides, is an absolute bar to the assertion against the railroad company of any liability for damages, if such legislative privilege exists. It does exist as to main line construction and operations of a railroad company, if the legislative authority invoked has been strictly pursued, and such authority has not been limited or an — 562 — nulled in any particular by the Constitution of the State. As to any construction or operation by a railroad company, however, which is not in its public, but in its private capacity, general legislative privilege is no bar to the assertion against it of liability for damages for any action which creates a nuisance at common law, although the legislative authority be unlimited and be not annulled in any particular by the Constitution of the State. Hence the Fisher Case in no way conflicts with out conclusion aforesaid. The same reason which distinguishes the Fisher Case from the instant case also distinguishes therefrom the following cases relied on for defendant, namely: Bennett v. Long Island Ry. Co., 181 N. Y. 431, 74 N. E. 418; Chicago v. Union Stock Yards, 164 Ill. 224, 35 L. R. A. 281; C. R. I. & P. R. Co. v. Joliet, 79 Ill. 25; I. C. R. Co. v. Grabill, 50 Ill. 224; Carroll v. Wisconsin Cent. R. Co., 40 Minn. 168, 41 N. W. 661. Defendant also relies on the case of Church v. Oregon Short Line, supra. That was a switch yard case. It was an action to recover damages for injuries to plaintiff’s church property, alleged to have been caused by the annoyance of noise only of trains and engines on tracks lawfully constructed and operated for purposes of switching and making up of trains near the church. The court in that case, it is true, held that switch yards do not fall within the same class as roundhouses, coal chutes, etc., and that railroads as to the operation of their switch yards enjoy the same immunity from liability for damages as they do with respect to main line operations, because of legislative privileges. But as we have seen such a holding, in that broadness of application, is unsound in principle and opposed to other authority. And in that case it is conceded that if instead of the mere annoyance from noise only, there had been a physical disturbance or interference with the property right by the casting of soot, cinders, etc., upon the — 563 — property, a vibration of it, or the emission of smoke, physically injuring the property and causing a nuisance of that character, the plaintiff would have been entitled to recover damages. On this point the court in its opinion, at p. 864, said: “To obtain relief for the latter consequences in a case of nuisance no constitutional nor statutory enactment was necessary.” We merely note the latter view in passing, but we do not wish to be understood as agreeing with the conclusion of law there stated. In our opinion, both upon principle and upon the overwhelming weight of authority, which' it would be out of place here to cite, if a switch yard construction and operation falls within the same class as main line construction and operation, and consequently within the immunity from liability for damages aforesaid by legislative privilege, then, unless the legislative authority is limited or annulled in some particular by the State Constitution, no action for damages in such case would He. The case of L. & N. Terminal Co. v. Lellyett, 114 Tenn. 368, 85 S. W. 881, 1 L. R. A. (N. S.) 49, is also relied on for defendant. But in that case the operation of a switch yard, as well as of a roundhouse, coal chute, an up-grade track construction to coal bins, and operation of engines and cars thereon, were complained of, and the injury resulting from the operation of the switch yard was perhaps the gravamen of the case according to the proof. And the court in its opinion draws no distinction between the switch yard operation and the other operations complained of, but classes the former, as well as the latter, as being done by the railroad company in its private capacity—which is in accord with the true principle involved and with our holding above. Numerous other decisions are cited for plaintiff and defendant, but they bear chiefly upon the constitutional question first above mentioned, which it is unnecessary for us — 564 — to consider in the instant case and hence any detailed reference to such cases would needlessly prolong this opinion. For the foregoing reasons we are of opinion that there was error in the order complained of, and the same will be set aside and annulled, the demurrer of the plaintiff to the plea of the defendant aforesaid will be sustained, and the case will be remanded to the trial court for further proceedings to be had therein not in conflict with this opinion. Reversed.