Brady v. City of Tacoma

• Decision Date: 20 October 1927
• Docket Number: 20781.
• Citation: 259 P. 1089,145 Wash. 351
• Parties: BRADY et ux. v. CITY OF TACOMA.
• Court: Washington Supreme Court

259 P. 1089

145 Wash. 351

BRADY et ux. v. CITY OF TACOMA.

No. 20781.

Supreme Court of Washington

October 20, 1927

Department 1.

Appeal from Superior Court, Pierce County; Remann, Judge.

Action by Barnett B. Brady and wife against the City of Tacoma. From the judgment rendered, defendant appeals, and plaintiffs cross-appeal. Judgment against defendant reversed, and cause remanded, with directions.

Mitchell J., dissenting.

Hayden Langhorne & Metzger and C. M. Langhorne, all of Tacoma, for appellant.

E. K Murray, Leo Teats, and Bartlett Rummell, all of Tacoma, for respondents.

TOLMAN J.

Respondents own, and occupy as a residence, property across the street from and directly facing the electric substation of the appellant city, situated on block 103, Second School Land Addition to Tacoma. Transmission wires bring to this substation a voltage of 110,000, where it is stepped down by means of transformers for distribution and use in the city. It is conceded that the construction and equipment of the substation is standard throughout, and it is not contended that it is negligently operated in any particular.

Respondents, as plaintiffs, prosecuted the action upon the theory that there had been a taking or damaging of their property without compensation, in violation of our well-known constitutional provision (section 16, art. 1) which has been so often quoted, in that their property was depreciated in market value and rendered less valuable for use by the unsightliness of the substation, the continuous noise attending its operation, and the potential danger to adjacent residents of injury or death from fallen wires or other causes incident to the operations.

The trial court held that there could be no recovery on account of the first and last causes, but found that the plaintiffs were damaged to the extent of $400 by reason of the continuous noise, and awarded them a judgment in that amount. The city has appealed from the judgment against it, and the plaintiffs have cross-appealed from that part of the judgment denying them a recovery because of the potential danger and fear arising therefrom.

The city criticizes a number of the trial court's findings of fact, and, since the case is triable here do novo, we have examined the evidence with care. It may be that, if necessary to reach a correct result, we would hold that in some respects the findings are not sustained by the evidence, but the conclusion arrived at on the main question raised by the city's appeal renders it unnecessary to discuss the evidence or disturb the findings, except as to a single word, which will later be referred to.

The findings, which we think present the questions to be here discussed and determined, are as follows:

'IV. That subsequent to the time the plaintiffs purchased said property and began to reside thereon, the defendant purchased tract A of block 103 of the Second School Land Addition to the city of Tacoma, and that said city erected thereon a certain electrical substation, the same being a part of the Cushman power system, for the purpose of receiving electrical power from the place of its generation, and to distribute it throughout said city of Tacoma; the said city of Tacoma owned, controlled, and operated the said substation in both its public and private capacity for profit; that said substation consists of a large concrete building, located on tract B of said block 103, and of numerous high steel towers carrying high tension wires, and other smaller structures and electrical appliances, located on that part of said lot 103, unoccupied by the aforesaid concrete building; that the same is surrounded by high steel wire fence, upon which are placed danger signs.

'V. That there emanates from the said substation a loud humming or buzzing noise, which continues at all hours of the day and night, and which is clearly audible in and beyond the plaintiffs' residence; that it penetrates and is audible within the home of said plaintiffs at all times; and that its effect is to damage and deteriorate the fair market value of plaintiffs' property to the extent of $400; and further, that the effect of said humming or buzzing noise is to continually annoy and render uncomfortable many of the residents surrounding the said substation, who are within the distance in which the said noise is audible.

'VI-A. That the substation erected on tracts A and B of block 103 of the Second School Land Addition to the city of Tacoma, by the defendant, the city of Tacoma, with its large concrete building, its steel towers carrying high tension wires, and its various other electrical appliances, etc., is unsightly; that the unsightliness of said substation renders the plaintiffs' property less desirable for residential purposes, with the consequence that its fair market value has been decreased in the sum of $600.

'VI-B. That the substation erected by the said defendant, the city of Tacoma, is a source of fear to plaintiffs and surrounding residents due to the ever present possibility of an accident occurring to the apparatus within the substation, of fallen wires carrying high voltage or of other similar results incident to the operation; that such fear is without substantial merit in fact. * * *

'IX. The court further finds that there is no potential danger from electrocution or otherwise outside the grounds of the substation itself.'

The word which we criticize and reject is the word 'loud' in the first clause of finding V. Without further explanation or limitation, the term is too elastic to correctly describe the condition. The noise is loud in the sense that it is audible on the respondents' property at all hours, but chiefly so at night, when other noises subside. It is not loud according to respondents' own testimony in that it drowns out other sounds, jars or stuns, but only is it thought to be disturbing because it is persistent, day and night, and is said to be disturbing to a nervous or sleepless person. We think with the word 'loud' eliminated, the finding goes as far as the testimony on the part of the respondents, if taken as wholly true, will justify.

The city contends that upon these facts the damages suffered by the respondents, if any, are damnum absque injuria. This, we think, is the principal question in the case, and if this contention is upheld other errors assigned need not be discussed.

We have two lines of decisions which seem to affect the question. First, the so-called railroad cases, upon which the city relies; and second, the incinerator and mill cases, which the trial court attempted to follow.

The first in time, and perhaps the first in importance, is Smith v. St. Paul, etc., R. Co., 39 Wash. 355, 81 [145 Wash. 355] P. 840, 'In the case at bar, appellant is operating its railway upon its own property except where the same crosses the public streets. Nor nuisance is alleged. Complaint is made of the ringing of bells, sounding of whistles, rumbling of cars, jarring of the earth, and the casting of cinders and soot upon, and smoke and fumes across, respondents' premises. They claim also to be injured by reason of the uncovered cuts through the cross-streets, and the wooden bridges over other of said cuts, which make the use of such streets more difficult.

'The jarring of the earth of respondents' lots and the casting of soot and cinders thereupon, and the emission of smoke physically injuring property, are injurious physical effects to the corpus of respondents' property, which, we think, come within the scope of the term 'damaged,' as used in the constitutional provision. If a railroad company cannot carry on its business upon its own property without necessarily disturbing the physical conditions of other property, it is evident that such company has not acquired sufficient property for the conduct of its business, and it should be required to pay such damages as the actual physical disturbance of the neighboring property entails thereupon. But the ringing of bells, sounding of whistles, rumbling of trains, and other usual noises, and the emission of smoke, gases, fumes, and odors are necessarily incidental to the proper operation of the road, and when not resulting from negligence, are such consequential injuries as must be held to have been anticipated by any one acquiring property in or about such a city, and are regarded as damnum absque injuria.'

The city is by statute authorized to construct and operate such a plant (Rem. Comp. Stat. § 9488), and our statute also provides:

'Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.' Rem. Comp. Stat. § 9916.

Under modern conditions the city's plant is just as much a necessity to the community as is a railroad, and the production and distribution of electricity is a public use. State ex rel. Chelan Elec. Co. v. Superior Court (Wash.) 253 P. 115. The testimony shows, without contradiction, that such a plant must be situated somewhere near the center of the district to be served, and there is nothing to indicate that this plant is improperly located; so in all respects the city is in as good a position as was the railroad in the Smith Case. The Smith Case was followed and affirmed in Re Fifth Avenue, 62 Wash. 218, 113 P 762, and Clute v. North Yakima & Valley Ry. Co., 62 Wash. 531, 114 P. 513, with respect more especially to the question of public streets, and was directly sustained and materially broadened upon the points here involved in De Kay v. North Yakima & Valley Ry. Co., 71 Wash. 648, 129 P. 574, and Taylor v. Milwaukee, etc., R. Co., 85 Wash. 592, 148 P. 887, L. R. A. 1915E, 634, in which cases the rule of nonliability was extended to cover the jarring and casting of smoke and cinders upon adjoining...