Choctaw, O. & G. R. Co. v. Drew

• Decision Date: 11 February 1913
• Docket Number: Case Number: 2351
• Court: Oklahoma Supreme Court
• Parties: CHOCTAW, O. & G. R. CO. v. DREW.

1913 OK 95

130 P. 1149

37 Okla. 396

CHOCTAW, O. & G. R. CO. v. DREW.

Case Number: 2351

Supreme Court of Oklahoma

Decided: February 11, 1913

Syllabus

¶0 1. NUISANCE--"Private Nuisance." Under the law in force in the Indian Territory prior to statehood, a private nuisance may be defined as anything wrongfully done to the hurt or annoyance of the lands, tenements, or hereditaments of another.

2. SAME--Acts Done Under Legislative Authority. Legislative grants of privileges or powers to corporate bodies, like those to a railroad company, to locate, construct, maintain, and operate its line of railroad and necessary appurtenances under the Act of Congress of February 28, 1902, c. 134, 32 St. at L. 43 (U.S. Comp. St. Supp. 1911, p. 708), confer no license to construct and use them in disregard of the private rights of others, and with immunity for their, invasion.

3. TORTS--Immunity From Liability--Legislative Authority. The granting of such powers and privileges does not exempt the beneficiary thereunder from liability for injury to adjacent property, caused directly by the unlawful exercise of such authority.

4. RAILROADS--Construction and Maintenance--Private Nuisance--Right of Action. A railroad company located and erected a roundhouse, switches, turntable, and cinder pit near the residence property of plaintiff, and so used them as to greatly impair the value thereof, by filling the atmosphere with offensive gases, dust, steam, and dense smoke, by throwing cinders over and upon said premises, and by loud noises and offensive odors. Held, a nuisance, causing special injury to the plaintiff, for which he had a right of action for damages; it appearing that the railroad company might have constructed said appurtenances at another suitable location, where such injuries would not have been inflicted, either to plaintiff or others.

5. SAME--Consequential Damages. Damages resulting from injurious acts of the above nature are not unavoidable and consequential, for which no action will lie, but result from the construction and use of the railroad company's property in close proximity to the premises of the plaintiff, and which do not affect in a like injurious manner the public generally, or other similar property situated elsewhere.

6. SAME--Private Nuisance. A railroad company has no more right than an individual to so use its property as to unreasonably interfere with the peaceable and comfortable enjoyment by others of their property, or to cause special injury to particular property, without making compensation for the injury.

7. PUBLIC LANDS--Town Sites--Lot Owners--Torts Affecting. The owner of permanent improvements on town lots in government town sites in the Indian Territory, and to whom said lots were scheduled and set apart by the Town-site Commission acting pursuant to law, and who subsequently received patents therefor, has sufficient title, prior to the issuance of a patent, to support an action to recover damages to the said lots inflicted by a railroad company which is in no way connected with any claim or interest in the land.

8. NUISANCE--Injury to Realty--Damages Recoverable. Under the rule of decision in the Indian Territory prior to statehood, where the structures and appurtenances contributing to the injury were of a permanent nature, and their injurious use continued for a long number of years, without effort to abate, all damages for injury to adjacent lands, both present and prospective, were recoverable in a single action.

9. SAME--Measure of Damages. The true measure of damages is compensation for the loss or injury sustained, and, as a general rule, the damages are measured by the depreciation in the market value of the property injured, where the injury caused by the nuisance is of a permanent nature.

Error from District Court, Carter County; S. H. Russell, Judge.

Action by Byron Drew against the Choctaw, Oklahoma & Gulf Railroad Company for damages on account of a private nuisance. From a judgment for plaintiff for $ 1,995, defendant brings error. Affirmed.

C. O. Blake, H. B. Lowe, R. J. Roberts, and W. H. Moore, for plaintiff in error.

Cruce, Cruce & Bleakmore, for defendant in error.

SHARP, C.

¶1 Among the errors urged by plaintiff in error are the following: First, that a railroad company is not liable to an abutting owner in damages on account of noise, smoke, or other like inconveniences, resulting from the operation of its trains in a lawful, careful, and proper manner; second, that a nuisance cannot arise so as to give a common-law right of action from that which the law authorizes; third, that, its right of way having been obtained pursuant to law, and compensation made for the lands taken, claims of abutting owners for consequential damages cannot be maintained. The railroad company's right of way was acquired under the Act of Congress of February 28, 1902, commonly known as the Enid and Anadarko Act (Act Feb. 28, 1902, c. 134, 32 St. at L. 43 [U.S. Comp. St. Supp. 1911, p. 708]). By virtue thereof the company acquired the right to locate, construct, own, equip, operate, use, and maintain its line of railroad through the Indian Territory, together with the right to take and condemn lands for right of way, depot grounds, terminals, and other railroad purposes, by whomsoever owned. It was further provided in said act that additional lands, not exceeding 40 acres at any one place, could be taken when necessary for yards, roundhouses, turntables, machine shops, water stations, and other railroad purposes. Provision was made for the institution of condemnation proceedings in the United States court in the Indian Territory, and for the assessment and payment of damages for all land taken, and all damages done or to be done by the construction of the railroad, or the taking of any lands for railroad purposes.

¶2 It is of the use of the appurtenances and structures, and machinery therein, or operated thereon, that plaintiff complains. It is shown: That the plaintiff was the owner of certain lots in the town of Ardmore, Ind. Ter., and was in possession thereof at the time the defendant built its line of railroad into and through said town, and had erected thereon lasting and valuable improvements, including houses, barns, and fences, and had set out trees, shrubbery, and flowers, and was occupying one of the residences on said lots as a home for himself and family. The other residences were occupied either by servants or by tenants, from whom plaintiff derived rents and revenues. The plaintiff had expended upon said premises about $ 5,000 in improving them for residence purposes and for a home, and that the same was desirable residence property, and that the total value of the premises was between $ 8,000 and $ 10,000. That the railroad company, within a short distance of plaintiff's property, erected and maintains a roundhouse, machine shops, and a cinder pit, and had also built and maintains switches, upon which engines were continuously being operated, and that in the operation of the roundhouse and machine shops large volumes of smoke, dust, and cinders were constantly and continually emitted therefrom and thrown upon and around the premises of the plaintiff to such an extent as to destroy the trees, shrubbery, and flowers, and to constitute a nuisance, and to render plaintiff's property almost worthless for residence purposes, the only purpose for which it was fitted or of value.

¶3 It was shown by the witness Hill that the railroad company was in the habit of killing its engines at the cinder pit just south of his house, which caused, to use the language of the witness, "an awful steam and smell," and that a solid, dense smoke always followed, causing great discomfort, and that it was necessary to let down the windows in order to remain in the house. The witness Wallace testified that it was particularly noisy down there at night and in the early morning, and that when the engines were let die it would rattle the windows to such an extent as to prevent hearing, and that the gas and smoke were very offensive at times, especially when they were killing the engines or putting out the fires; that the smoke was very injurious; and that they could not successfully put out washing. The plaintiff testified that the railroad company was operating from four to eight engines in and out, both day and night; that two railroads used the roundhouse, and located the site of the switches, cinder pit, and roundhouse near his property on the south; that in operating its road there was much noise, and that the smoke was very dense, to such an extent that it was necessary to close down the windows and go in the house to escape the discomforts of the smoke and cinders; and that at times the noise coming from the railroad premises was so loud that conversation could not be carried on.

¶4 Obviously the agencies effecting this result constituted a nuisance. They interfered seriously, not only with the enjoyment by plaintiff of his property, acquired before their construction, but greatly reduced both its usable and salable value. A nuisance is defined by Blackstone as: "Anything that worketh hurt, inconvenience or damage to another." Sutherland on Damages (section 1035) defines a private nuisance as anything wrongfully done to the hurt or annoyance of the lands, tenements, or hereditaments of another, and adds that it may be anything which is calculated to interfere with the comfortable enjoyment of a man's house, as smoke, noise, or bad odors, even when not injurious to health. It may be any wrongful act which destroys or deteriorates the property of another, or interferes with the lawful use and enjoyment thereof, or any act which unlawfully hinders the enjoyment of a common or public right and thereby causes a special injury.

¶5 In Baltimore & Potomac Ry. Co. v. Fifth Baptist Church, 108 U.S. 317, 2 S. Ct. 719, 27 L. Ed. 739, it is said:

"That is a nuisance which annoys and disturbs one in the

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