Costigan v. Pa. R. Co.

• Citation: 54 N.J.L. 233,23 A. 810
• Parties: COSTIGAN v. PENNSYLVANIA R. CO.
• Decision Date: 07 March 1892
• Court: United States State Supreme Court (New Jersey)

23 A. 810

54 N.J.L. 233

COSTIGAN

v. PENNSYLVANIA R. CO.

Supreme Court of New Jersey.

March 7, 1892.

(Syllabus by the Court.)

Case certified from circuit court, Hudson county; before Justice Knapp.

Action by Costigan against the Pennsylvania Railroad Company to recover damages for an injury to plaintiff's premises. Case certified to the supreme court for advice. Advised to enter judgment for plaintiff.

Argued before Bkasles. C. J., and Depue and Van Syckel, .1.1

Randolph, Vondivt & Black, for plaintiff.

Vredenburg & Garretsun, for defendant.

DEPUE, J. The plaintiffs are owners of a lot of land on which were erected two dwelling-houses. The premises are situated near to a strip of land on which the defendants are engaged in constructing a railroad. The declaration charges that the defendants, wrongfully and injuriously intending, etc., on divers days and times, etc., dumped and filled into and upon the natural surface of certain lands near to the plaintiffs said lot and dwelling-houses a vast quantity, to-wit, 200,000 tons, of earth, gravel-stones, and other filling, and raised and banked upon said lands embankments of great height, to-wit, of the height of 30 feet, and thereby forced and pressed large quantities of the said earth, gravel-stones, and other fillings into and upon the said lot of plaintiffs, beneath the surface of the same, and thereby upheaved and greatly disturbed the surface and soil of said lot, and forced and carried the said dwelling-houses to the northward and eastward of their proper position upon said lot, and to and upon the lands of others, and thereby caused the foundation of said dwelling-houses to fall away, crack, and crumble, and the walls of said bouses to become broken, shattered, and defaced, and to topple and lean over, etc. The defendants, by a special plea, justify as lessee of the New Jersey Junction Railroad Company a corporation of this state, organized under the general railroad law, and authorized to lay out, construct, maintain, and operate a railroad between certain designated points. The plea contains averments of the survey and location of a railroad by the company, duly made and filed, and that the company had acquired title to lands required for the construction of its railroad. The plea avers that "the defendants, as lessees of the said New Jersey Junction Railroad Company, in order to carry into effect the object of the incorporation of the said company, did proceed to construct their road upon said lands with reasonable prudence and care, doing no unnecessary damage to private or other property; and did, In the prosecution of the said work, necessarily, with reasonable prudence and care, doing no unnecessary damage to private or other property, dump, fill into and upon, the natural surface of its own lands so acquired by it as aforesaid, a quantity of earth and other tilling, and raise and bank up upon said lastmentioned lands embankments of great height, as it lawfully might do for the causes aforesaid, which are the said supposed trespasses or grievances of which the said plaintiffs in their declaration complain, without that." etc. The declaration contains two counts, setting out substantially the same cause of action, and the defendants pleaded separate pleas,—the Pennsylvania Railroad Company justifying under the franchises possessed by the United New Jersey Railroad & Canal Company. But the foregoing abstract of the pleadings is all that is necessary for present purposes.

The cause of action set out in the declaration is a trespass upon the plaintiffs' lands. The allegation that the acts of the defendants were wrongfully and injuriously done is a sufficient averment to sustain the declaration. The merits of this controversy arise upon the consideration of the pleas filed by way of justification. For what character of injuries occasioned in the course of the exercise of corporate powers and franchises, such as the defendants invoke, the company's charter will afford a justification, is a subject upon which the law in this state may be regarded as settled. In Beseman v. Railroad Co., 50 N. J. Law, 235, 13 Atl. Rep. 164, the court held that an action would not lie against a railroad company authorized by its charter to construct and operate a railroad, at the suit of the owner of lands adjacent to the company's track, to recover damages arising incidentally from the operation of its railroad and the transaction of its business, except upon an allegation of negligence or want of skill. In that case the suit was by the owner of improved property adjacent to the track of the company's railroad. The declaration alleged that the company built an elevated track for a railroad in the rear of the plaintiffs' lots, within 10 feet of the dwelling-houses thereon, and used said track for the passage of locomotives and cars in the transportation of cattle, sheep, swine, manure, and other freight, so as to render said dwelling-houses unfit for habitation, and wrongfully allowed its cars loaded with such freight, both in the day-time and at all hours of the night, to stand upon said track, emitting noisome odors, etc., and shifted and distributed its cars, and blew the whistle of its locomotives, and causing great and unusual noises, etc., and jarring the doors and walls of said dwelling-houses, etc., whereby, etc. To the declaration the defendant pleaded its chartered right to build an elevated railroad, and that it used the same in the prosecution of its business as a common carrier of passengers and freight, as it lawfully might do, and did thereby necessarily shift and distribute its cars, and did necessarily blow the whistles of its locomotives, etc., 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, without that, etc. This plea was demurred to, and the chief justice, in sustaining the plea, placed his opinion on the stable ground that the franchises granted to the defendant legalized the running of trains and the transportation of freight by the company, and, the acts complained of being themselves lawful, those incidental injuries which necessarily and unavoidably resulted from the exercise of legislative authority, if prosecuted with due care, were damnum absque injuria, for which no action would lie. This case was followed in Thompson v. Railroad Co., 51 N. J. Law, 42, 15 Atl. Rep. 833, and was subsequently affirmed on error, the, opinion of the chief justice being adopted as the opinion of the court of errors. 52 N. J. Law, 221, 20 Atl. Rep. 169. But Beseman v. Railroad Co. gives no countenance to the plea in question. The distinction is between these incidental injuries which are unavoidable in the operation of a rail road in the transaction of its business, such as the sounding of whistles, the emission of smoke and sparks from locomotives, the noise and vibrations incident to the running of trains, the interference with public highways, annoyances from the character or condition of freight transported, and the like, which are injuries partaking of the nature of public injuries, and acts which are a direct invasion of private property. Injuries of the class first mentioned are the necessary concomitants of the use of the franchises granted. The acts from which such injuries arise, being legalized, are not public nuisances, and there is no foundation on which to apply the principle that a private individual may have redress...