Arizona Hercules Copper Co. v. Protestant Episcopal Church Corp. of Arizona

• Decision Date: 03 June 1920
• Docket Number: Civil 1731
• Citation: 21 Ariz. 470,190 P. 85
• Parties: ARIZONA HERCULES COPPER COMPANY, a Corporation, Appellant, v. PROTESTANT EPISCOPAL CHURCH CORPORATION OF ARIZONA, a Corporation, and RAY CONSOLIDATED COPPER COMPANY, a Corporation, Appellees
• Court: Arizona Supreme Court

190 P. 85

21 Ariz. 470

ARIZONA HERCULES COPPER COMPANY, a Corporation, Appellant, v. PROTESTANT EPISCOPAL CHURCH CORPORATION OF ARIZONA, a Corporation, and RAY CONSOLIDATED COPPER COMPANY, a Corporation, Appellees

Civil No. 1731

Supreme Court of Arizona

June 3, 1920

APPEAL from a judgment of the Superior Court of the County of Pinal. O. J. Baughn, Judge. Affirmed.

Mr George J. Stoneman and Mr. W. L. Barnum, for Appellant.

Messrs Armstrong & Lewis and Mr. E. P. Patterson, for Appellees.

OPINION

ROSS, J.

This is a condemnation proceeding whereby the appellant mining company, hereinafter designated plaintiff, sought to condemn a right of way for a steam railway over the property of appellee, hereinafter designated defendant.

The defendant church, in 1914, obtained from the Ray Consolidated Mining Company, the owner thereof, a fifty-year lease of a lot or parcel of land situated between the railroad depot and on the east side of the main highway or street leading therefrom to the town of Ray, and constructed thereon a church building to be used for religious, educational and social purposes. Thereafter, on May 20, 1918, the plaintiff finding it necessary for the successful operation of its mines, constructed at or near shafts on its mines, ore-bins and in pursuance of a general plan, proposed and undertook to construct three railroad tracks leading from ore-bins to the main line of the Ray and Gila Valley Railway Company. The church building and grounds were about seventy-five feet from ore-bins, and the three tracks passed it on the west, two of them being entirely in the main highway or street leading from the town of Ray to the railroad depot, and the other passing over the southwest corner of the church property within ten feet and two inches of the church wall. The strip of land taken is very small, the right of way extending over it being about eighty feet long. This proceeding is to condemn this particular piece of land. Ore-cars and steam engines are to be operated on all three of these tracks for the general purposes of conveying supplies to the mines and ore-bins and taking from the ore-bins and mines the products of the mines. It is agreed that the life of the lease is the entire value of the land. The Ray Consolidated Mining Company defaulted, and therefore claims nothing as the owner of the fee. The only question litigated was one of damages.

The defendant in its answer adopted the theory that because the three tracks were included in the general plan of construction by plaintiff they in fact were but one improvement, and because one of the tracks was on defendant's property, the same rule of incidental or consequential damages should be extended to all the tracks and their operation. It was accordingly alleged in the answer that --

"By the operation of said trains through, over, and along the property of this defendant [the plaintiff] will interfere with the access to the property of this defendant of the communicants and attendants upon the services had in the church, . . . and by reason of the construction, operation, and use of said railroad of the plaintiff passing through, over, across, and along the property of this defendant, the defendant's church building and leasehold estate will be rendered of no value as a place of worship and for the holding of the meetings of the various organizations conducted by the defendant therein. That the ringing of bells, sounding of whistles, the blowing off of steam, the loud puffing of plaintiff's locomotive engines, combined with smoke, dust, and foul, noxious, and offensive odors emitted from plaintiff's engines, and which will enter the church, and the noise and rattle of its trains as the result of stopping them at points immediately adjacent to the property of this defendant, will constantly disturb religious exercises and meetings in said church, and will render the said church and the said land and leasehold interests of this defendant of no value whatever. That the operation of said trains of this plaintiff within a short distance of the walls of said church will damage and destroy the said church by shaking down and breaking the adobe walls of which it is constructed."

The plaintiff specially demurred to the above allegations of damages, asserting that they "do not constitute just, proper or legal ground of damage, . . . and are not a proper basis of damages to be considered by the court or jury in this case." The same objection was made to the introduction of evidence in support of the allegations of damages, and finally plaintiff excepts to instructions of the court submitting to the jury these elements of damages.

The Constitution, article 2, section 17, provides that --

"No private property shall be taken or damaged for public or private use without just compensation. . . ."

The statute (paragraph 3087, Civ. Code) points out what the compensation shall consist of, as follows: (1) The value of the property taken or condemned and the improvements thereon; (2) incidental damages or depreciation in value by reason of the severance and the construction of the improvements in the manner proposed by plaintiff, to the land not taken.

In a proper case these may be offset by benefits, but, as there are none in this case, that feature will not be considered.

As already indicated, the controversy is over the compensation sought for incidental damages occasioned by the taking of a small strip of land for the right of way for one of the tracks, and for the operation of the other two tracks, upon the public street adjacent to defendant's property.

Plaintiff suggests that a different rule of compensation should be applied in this case than in the ordinary one, for the reason that the defendant knew when it entered the mining camp of Ray that the dominant interest was mining, to which every other interest was or should be subservient, and that, having placed its house of worship where it did, it ought not to be permitted to complain when the chief industry of the community, in its growth and development, encroached upon or inconvenienced or incidentally injured its property. To a limited extent, this contention is unquestionably correct. Plaintiff had the undoubted right to construct its ore-bins at the mouth of its shaft on its own property, and to use them as a means to facilitate the handling of its ores. The fact that the bins were in close proximity to the church, or that in their reasonable use the noise therefrom might have a tendency to disturb public worship or other functions of the church, and thereby diminish the value of defendant's property, would not give rise to a cause of action.

"It has been held that every land owner has the right to develop and use the natural resources of his land, and in the absence of negligence is not liable for consequences incidental to such development and use." Brede v. Minn. Crushed Stone Co., 143 Minn. 374, 173 N.W. 805.

This rule has special application to mines, oil wells and stone quarries that must be operated at a fixed place. However, defendant does not claim any damages or compensation on account of the location of the ore-bins or the noise or inconveniences occasioned thereby. When a mine owner seeks a right of way to his mines for the purpose of facilitating his operations, and in doing so creates conditions the natural and logical result of which is to inflict damage upon his neighbor's property, we apprehend a different rule applies. While in this case it is proposed to build on the right of way condemned and along the street adjacent to defendant's property railroad tracks upon which trains are to be moved by means of locomotive engines, the utility is entirely of a private nature. It is not to be a common carrier. It will serve only the plaintiff as an ore and supply train. The way sought and taken is, therefore, nothing but a private way.

"He is serving himself in his own way, and has no right to claim exemption from the natural consequences of his own act. The interests in conflict in this case are therefore, not those of the public and an individual, but those of two private owners who stand on equal ground as engaged in their own private business." Robb v. Carnegie &...