Good v. Queen's Run Fire Brick Co.

• Court: Pennsylvania Supreme Court
• Writing for the Court: MR. JUSTICE MESTREZAT:
• Citation: Good v. Queen's Run Fire Brick Co., 73 A. 906, 224 Pa. 496 (Pa. 1909)
• Decision Date: 19 April 1909
• Docket Number: 72
• Parties: Good, Appellant, v. Queens Run Fire Brick Company

73 A. 906

224 Pa. 496

Good, Appellant, v. Queens Run Fire Brick Company

No. 72

Supreme Court of Pennsylvania

April 19, 1909

Argued March 16, 1909 [Copyrighted Material Omitted]

Appeal, No. 72, Jan. T., 1909, by plaintiffs, from decree of C.P. Clinton Co., Jan. T., 1906, No. 2, dismissing bill in equity in case of Kate A. Good et al. v. the Queens Run Fire Brick Company and the Pennsylvania Railroad Company. Affirmed.

Bill in equity for an injunction.

HALL P.J., filed the following opinion:

The plaintiffs' bill in this case was filed November 11, 1905. The allegations contained in the bill which they have endeavored to sustain by the testimony are briefly as follows:

Kate A. Good has been, since the year 1876, the owner in fee of two certain lots of ground situate on Water street, in the city of Lock Haven, upon which she resided, together with her husband and family, in a large three-story brick dwelling house which was erected thereon at the time of the purchase of said lots in 1876. There was also a brick stable erected on the premises at that time. The dwelling house was remodeled, enlarged and furnished in modern style with suitable furniture in the year 1900, at which time the plaintiffs built another stable on another lot in the rear of those on which the dwelling house is located. The dwelling house is situated in the most beautiful and attractive part of the city and until the occurrences complained of was a very desirable location for residential purposes. The family consists of herself, her husband and four children, all adults. They keep horses and carriages for their convenience, pleasure and business.

Water street, on the northerly side of the plaintiffs' property, is a public highway, extending on its northerly side to the bank of the west branch of the Susquehanna river, which is also a public highway. The street is now about fifty feet in width.

About the year 1887 the Queens Run Fire Brick Company, a corporation, one of the above-named defendants, erected a large fire brick plant between Water street and the river, extending to a point about 500 feet east of the plaintiffs' residence and without permission of the plaintiffs it entered upon Water street in front of their residence and cut down certain trees which were not only ornamental but useful in protecting the bank from floods and the premises of the plaintiffs from ice and drift. It constructed a railroad of standard gauge, with cross ties eight feet long and with ballast and rails upon Water street along the entire front of the plaintiffs' premises, eastwardly therefrom to the brick company's plant and westwardly therefrom to the Philadelphia & Erie Railroad, thereby appropriating part of the street fronting on the plaintiffs' property, preventing the use thereof by the plaintiffs and by the public and diverting it from the purpose for which it was intended. The Pennsylvania Railroad Company, a public corporation, commenced running its locomotives and cars on the said railroad for the purpose of hauling coal to, and the manufactured product from, the said fire brick plant, and has been running its trains on said railroad until the present time.

The fire brick company has a large tract of land on the north side of the Susquehanna river, from which it obtains its fire clay used in its manufactory, and for some time after the construction of this plant it transported this clay from its mines to the river by cars and then took it by boats on the waters of said river to its said plant, but about the year 1900 it ceased to transport its clay in this manner and since that time has been transporting the same over the Philadelphia & Erie Railroad to its intersection with the brick company's railroad above mentioned, and then over the railroad of the brick company to its plant. At this time the brick company built an additional track at the eastern end of its railroad which was elevated about eighteen or twenty feet above the surface of the ground on trestles in order that the clay might be carried by cars over this trestle into the works. This elevation made a very heavy grade a short distance east of plaintiffs' premises. An average of about one train a day would run over the brick company's railroad up until the time when it began transporting its clay in this manner, but the transportation of the clay made additional trains necessary, and since the year 1900 the said plant has been very much enlarged and its capacity greatly increased, so that the number of trains per day has increased and they are much heavier than they formerly were, and in order to handle the cars up the steep grade at the eastern end of said railroad to the top of the trestle, more power is required than formerly, and in the effort made in front of the plaintiffs' premises to gain the necessary momentum to run up the incline, great noise is made and great volumes of smoke are emitted from the engines. There is also a great deal of switching and shoving of trains in front of the plaintiffs' premises. The brick company's railroad is situated twenty-three feet from the curb in front of plaintiffs' front door and within nineteen and one-half feet of the curb line at the western end of their lots, thus rendering the street difficult of passage and making it impossible to turn vehicles in the street. The running of the trains frightens the horses of the plaintiffs and those of visitors at their house, so that it is dangerous and frequently impossible to drive in front of the house. Horses have been frightened and broken loose and ran away there so that the tying of horses in front of the plaintiffs' premises has necessarily been abandoned.

The large and heavy trains running with the power necessary to enable them to arise to and upon the said trestle, the shoving of engines and switching of cars shake the ground and jar the plaintiffs' house to such an extent that windows have been broken, foundation walls impaired, plastering and brickwork cracked, pictures and bric-a-brac shaken from the walls and clocks so affected and injured that they will not keep time.

The smoke, dust and soot from the locomotives enter the plaintiffs' house and damage its walls and ceilings, furniture, clothing and carpets therein, and when the wind is from the east no clothes can be hung out to dry without being soiled by the soot from the locomotives. The operation of the railroad renders the plaintiffs' property less desirable as a residence, increases the danger to the occupants of the house and to the property, greatly to the injury of the plaintiffs, and their property is consequently impaired and depreciated in value.

The plaintiffs ask the court by reason of these injuries complained of, first, to enjoin the Pennsylvania Railroad Company from running its locomotives and trains upon the railroad of the said brick company; second, to compel the Queens Run Fire Brick Company to remove its said railroad and to restore Water street to the same condition, so far as is possible, that it was in before the construction of said railroad. As to their third request, the allegations upon which it is founded have been abandoned, as we understand it, as no testimony was taken to support them. It may, therefore, be disregarded. Fourth, that the defendants be compelled to make compensation to the plaintiffs for all damages suffered by reason of the matters complained of, and fifth, for general relief.

To this bill the Queens Run Fire Brick Company filed its answer setting up, among other things, that at the time of the erection of their plant in 1887, and the construction of their railroad on Water street, the plaintiffs' residence consisted of a very ordinary dwelling house and small stable on the same lot, both being of an unpretentious character that the plaintiffs at that time made no objection or protest against the erection and establishment of the plant and the railroad connected therewith, but with full knowledge of the same, stood by and permitted it to invest large sums of money in its said plant and acquiesced therein for a long time; that the plaintiffs enlarged and remodeled their residence in the year 1900 at which time the brick plant was in active operation, under conditions not as favorable for surrounding properties as they exist at present; that it has invested $250,000 in its plant and employs continuously about 250 laborers, its monthly pay roll amounting to $9,000; that its manufacture of brick is conducted on the most approved plan and by the best of modern machinery and methods. In 1903 it remodeled its plant, placing all machinery on heavy concrete foundations and otherwise went to a large expense to make the operation of the machinery noiseless and free from vibration, which result was obtained; that at this time also the plaintiffs were fully aware that the plant was being remodeled in such increased capacity, but stood by and permitted large sums of money to be expended for this purpose; that only one train goes into the plant in the morning between 7 and 8 o'clock and remains there on an average about fifteen minutes, and another train goes into the plant during the afternoon and remains a period of about thirty minutes, and that these two trains are the only ones going in and out of the plant each day; that the change in the method of transportation of their clay from water to rail was rendered necessary by lack of water in the river on which to float their boats and flats, and that the change from water to rail is at an increased expense. That they are the largest industry in the city of Lock Haven and pay taxes to the city and county amounting to over $1,400 a year; that all of their employees live in Lock Haven, or its immediate vicinity, and that if the prayer of the bill is...