Beseman v. Pa. R. Co.

• Decision Date: 09 March 1888
• Citation: 50 N.J.L. 235,13 A. 164
• Parties: BESEMAN v. PENNSYLVANIA R. CO.
• Court: New Jersey Supreme Court

13 A. 164

50 N.J.L. 235

BESEMAN

v. PENNSYLVANIA R. CO.

Supreme Court of New Jersey.

March 9, 1888.

(Syllabus by the Court.)

On demurrer.

This suit is for damages alleged to have been done to the houses and lands of the plaintiff, Eliza Beseman, by the running of the defendant's trains. The declaration, in substance, alleged that the plaintiff was the owner of certain lots of land in Jersey City, fronting on Fifth street, on each of which lots there were dwelling-houses on the front and rear, and that the defendant on the 1st January, 1874, built an elevated track for a railroad, running at the rear of said lots, and very near, to-wit, within 10 feet of, the dwelling-houses situated on the rear part of said lots, and during, etc., has used said elevated track for the passage of locomotives and cars in the transportation of cattle, sheep, swine, manure, and other freight, as to render said dwelling-houses of said plaintiff unfit for habitation, and of no use or value to said plaintiff whatever; and that said defendants, during all the time aforesaid, both in the day-time, and at all hours of the night-time, have wrongfully allowed their cars loaded with cattle, sheep, swine, manure, and other freight, emitting noisome and unhealthy odors, to stand upon said track within close proximity, to-wit, the distance of 10 feet, to the dwelling-houses on the rear of said lots, and have then and there shifted and distributed their cars, and blown the whistle of their locomotives, and started their trains of cars, and suddenly stopped them, and backed them, and started them again; causing great and unusual noises in the neighborhood of said dwelling-houses, and causing divers noxious, offensive, and unwholesome vapors, fumes, smokes, smells, and stenches to flow, arise, and surround said dwelling-houses, and thereby also jarring the doors and walls of said dwellings, and breaking the plaster upon the walls, and by means aforesaid have driven the tenants from said houses, and have rendered the same untenantable and unfit for use, etc. The first plea was the general issue, on which issue was joined. The second plea, which was demurred to, was a special traverse. In this the defendant set out its chartered right to build this elevated road, and then averred "that in execution of said powers, and by force and virtue of said acts, they did survey, lay out, and locate said railroad on the several courses set down in said survey, and did construct a railroad between the points in the said last above act set forth, as they fully might do, doing no unnecessary damage to private or other property," etc. "That, after the construction of said railroad, at the several times when, etc., the defendant, in order to carry into effect the objects of the incorporation of said the United New Jersey Railroad & Canal Company, did use the same in the prosecution of its business as a common carrier of passengers and freight, and continued the same during the time mentioned in said declaration, as it lawfully might do for the causes aforesaid, and did thereby necessarily create some smell and some noise, and did necessarily shift and distribute its cars, and did necessarily blow the whistles of its locomotives, and did necessarily start and suddenly stop with trains of cars, and back them, and start them again, and did necessarily cause noises, smoke, and vibration, and did necessarily transport thereon, cattle, sheep, swine, manure, and other freight, as it lawfully might do for the causes aforesaid, which are the supposed grievances of which the plaintiff in her said declaration complains; without that, that it, (the said defendant) was guilty of the said supposed grievances, or any, or either of them; and this it (the said defendant) is ready to verify."

Argued before the Chief Justice and Justices SCUDDER, REED, and DIXON.

William H. Davis and Mr. Linn, for plaintiff. James B. Vredenburgh, for defendant.

BEASLEY, C. J., (after stating the facts as above.) The form of the plea, which has been demurred to, will be considered briefly in the sequel; but for the present it will be taken to present, in a sufficient manner, the facts on which the defendant, in this part of the procedure, has based its defense. That defense, stripped of all verbosity, is that, by force of its franchises derived from the public grant, it has 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. Its position is that for such incidental and unavoidable damage it is not responsible. The plaintiff occupies the opposite ground; claiming 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. 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 other 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 un-noticeable 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 these companies, touching such land-owners, general tort-feasors. Their tracks run for miles through the cities of the state, and every landowner on each side of the track would be 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. Nor 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. Nor does there appear to be any relief from such a consequence; the aggrieved land-owner 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 plaintff's claim involves the assertion that he can put a stop to the business of the defendant at the point in question.

The statement of the legal situation, if the hypothesis in question obtained, shows that such hypothesis is a mere vagary. From the first institution of railroads in this state to the present time, these grounds of action, if they exist, have been present in numberless instances; and yet this is the first suit of the kind that has been brought. The statutes of the state have always been, and are now, framed on the opposite theory. These laws, in providing for the acquisition and condemnation of lands, authorize the taking of such lands only as are requisite for the necessary structures of the road and the accommodation of its business, and require the payment of damages only to that class of land-owners. These corporations are not permitted to sequester any other property, nor to compensate for other damages. The central idea of the system is that for incidental damages these companies are not responsible. This system, thus ancient and uniform, is now challenged in this case. The process of reasoning which is used in support of the plaintiff's claim has not been overlooked. It is said that the plaintiff's property has been damnified, and that, as the law declares that whenever there is a wrong there is a remedy, the legislature itself cannot deprive him of his right to redress. But this course of argument contains in it the fallacy that the general rules of law are universal, like rules of logic. But law is a practical science; and almost all its general...