Although in England, Parliament, being omnipotent, may authorize
the taking of private property for public use without compensation,
the English courts decline to place an unjust construction on its
acts, and, unless so clear as not to admit any other meaning, do
not interpret them as interfering with rights of private
property.
Legislation of Congress is different from that of Parliament, as
it must be construed in the light of that provision of the Fifth
Amendment which forbids the taking of private property for public
use without compensation.
While Congress may legalize, within the sphere of its
jurisdiction, 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.
While the owners of a railroad constructed and operated for the
public use, although with private property for private gain, are
not, in the absence of negligence, subject to action in behalf of
owners of neighboring private property for the ordinary damages
attributable to the operation of the railroad, a property owner may
be entitled to compensation for such special damages as devolve
exclusively upon his property and not equally upon all the
neighboring property.
In this case,
held that an owner of property near the
portal of a tunnel in the District of Columbia constructed under
authority of Congress, while not entitled to compensation for
damages caused by the usual gases and smoke emitted from the tunnel
by reason of the proper operation of the railroad, is entitled to
compensation for such direct, peculiar and substantial damages as
specially affect his property and diminish its value.
37 App.D.C. 289 reversed.
The facts, which involve the right, under the Fifth Amendment,
of an owner to be compensated for special and peculiar damages to
his property by reason of the operation of a railroad near the
premises, are stated in the opinion.
Page 233 U. S. 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
Page 233 U. S. 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 of 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
Page 233 U. S. 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 wallpaper,
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. 774, c. 354; 32 Stat. 909, c. 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
Page 233 U. S. 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. 916, c. 856, authorizes the Terminal Company
to acquire, by purchase or condemnation,
Page 233 U. S. 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 Hurl. & Nor. 679, 29 L.J. Exch. 247, 1 Eng.Rul.Cas.
296;
Jones v. Festiniog Ry. Co., L.R. 3 Q.B. 733;
Hammersmith &c. Ry. Co. v. Brand, L.R. 4 H.L. 171, 38
L.J.Q.B. 265, 1 Eng.Rul.Cas. 623;
Metropolitan Asylum District
v. Hill, L.R. 6 App.Cas. 193, 201, 203;
London &
Brighton Ry. Co. v. Truman, L.R. 11 App.Cas. 45. 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 Fifth Amendment -- "Nor shall private
property be taken for public use without just compensation" -- and
is not to be given
Page 233 U. S. 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 Fifth
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;
Costigan v. Pennsylvania R. Co., 54 N.J.L. 233;
Cogswell v. N.Y., N.H. & H. R. Co., 103 N.Y. 10;
Garvey v. Long Island R. Co., 159 N.Y. 323;
Bohan v.
Port Jervis Gas Light Co., 122 N.Y. 18, 29;
Sadlier v.
City of New York, 81 N.Y.S. 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 Fifth
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
Page 233 U. S. 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 skillful
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 nonnegligent operation of a railroad.
Transportation Co. v. Chicago, 99 U. S.
635,
99 U. S. 641;
Beseman v. Pennsylvania R. Co., 50 N.J.L. 235, 240, 13 A.
164,
aff'd, 52 N.J.L. 221.
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
Page 233 U. S. 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 tortfeasor, 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 & Potomac R. Co. v. Fifth Baptist Church,
108 U. S. 317, the
Court, while recognizing (p.
108 U. S. 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
Page 233 U. S. 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.
108 U. S. 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
Page 233 U. S. 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
Fifth 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. 916, c. 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
Page 233 U. S. 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.