De Kay v. North Yakima & V. Ry. Co.

• Decision Date: 24 January 1913
• Citation: 71 Wash. 648,129 P. 574
• Court: Washington Supreme Court
• Parties: DE KAY et ux. v. NORTH YAKIMA & V. RY. CO.

129 P. 574

71 Wash. 648

DE KAY et ux. v. NORTH YAKIMA & V. RY. CO.

Supreme Court of Washington

January 24, 1913

Department 1. Appeal from Superior Court, Yakima County; Thomas E Grady, Judge.

Suit by R. E. De Kay and wife against the North Yakima & Valley Railway Company. From a judgment for plaintiffs, defendant appeals. Reversed, and action dismissed.

Englehart & Rigg, of North Yakima, for appellant.

Holden & Shumate, of North Yakima, for respondents.

PARKER J.

The plaintiffs seek an injunction restraining the defendant from maintaining and using a spur track on its line of railway near their residence in the city of North Yakima until such time as the defendant shall acquire, as against the plaintiffs, the right to so maintain and use such spur track by eminent domain proceedings. From a decree in favor of the plaintiffs, the defendant has appealed.

The accompanying plat, which is a portion of one introduced in evidence, will aid in a correct understanding of the facts:

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Respondents own lot 6 on which they maintain their residence, and also a garage on the northwest corner thereof. Appellant owns lots 7, 8, 9, and 10, on which it maintains its railway and also a spur track called 'industrial track.' Benjamin Young owns lot 11, on which he maintains a manufacturing plant and a warehouse contiguous to appellant's industrial track. In June, 1911, when appellant commenced the construction of its industrial track upon the line indicated on the plat respondents commenced this action. While they prayed for a temporary injunction, we assume from the record before us that none was issued. In any event, the industrial track was constructed some time before the trial of the cause upon the merits, which occurred in October 1911. This track is used for a team track, at least as far as the alley, beyond which it appears to be used only for shipments to and from Young's warehouse. Before the trial, appellant had acquired from the city of North Yakima a franchise, giving it the right to construct its industrial track across the alley, which franchise provided: 'That said track shall only be used to serve the warehouse to be constructed and maintained on lot 11.' This track is about nine feet from the northwest corner of respondents' lot, about 35 feet from the north line of their lot at its middle point and about 50 feet from the northeast corner of their lot. Where the track crosses the alley, there is maintained a good plank crossing, so that travel through the alley is not interfered with in the least, except while cars or engines may be crossing the alley.

Respondents rest their right to have appellant restrained from maintaining and using its industrial track in such close proximity to their property until it acquires the right so to do as against them by eminent domain proceedings, upon the damage which they allege results to their property from the smoke, fumes, and cinders emitted and cast upon their property from engines running upon the track, and also from noise and vibration caused by the running of cars and engines upon the track.

The nature and extent of this alleged damage is told in the testimony of respondent R. E. De Kay as follows: 'Q. Now, can you state what effect the running of trains on this spur track has on your property with reference to smoke? * * * A. Why, we get smoke whenever they come in and the wind is right. Q. About how much smoke, Mr. De Kay? A. It is pretty hard to state. It varies in the amount according to how hard they work getting out. Q. Where are your bedrooms situated in this house? A. They are on the north side of the house. Q. Have you ever opened your bedroom window when a train was on that spur track, an engine? A. Why, we have them open, as a rule, all the time. Q. State to the court what the effect was with the window open. A. I think it was Tuesday or Wednesday night my wife and I were in the room, sitting there, when the switch engine came in. There was enough smoke came in to fill the bedroom with smoke. * * * Q. Now, when did you say that was? A. Tuesday or Wednesday night, this week. Q. Have you noticed inconveniences from smoke on other occasions, Mr. De Kay? A. Yes, sir. Q. State what the facts are with reference to cinders. A. Well, there is more or less cinders. Of course we haven't noticed them so much as we have the smoke. They, as a rule, light on the ground or on the roof; considerable soot comes out with the smoke. Q. Have you noticed any soot in the rooms in your house? A. No, I don't know as I have. Q. Have you noticed any soot on the porch? A. Yes, I have noticed it around on the walks and clothes. * * * Q. You do some washing out home, do you, Mr. De Kay? A. Yes, some. Q. And hang it out on a line in the rear of the lot? A. Yes. Q. State what effect smoke and cinders have on the clothing. A. Well, I haven't noticed the effect, except that I have seen them on the clothes. * * * Q. Now, do they run trains in there at night? A. As a rule most of their switching is done nights. Q. What effect does that have upon you? A. Why, the noise wakes us up, as a rule, every time they come in. Q. Have you noticed any jarring or vibration? A. Yes, sir. Q. To what extent have you noticed vibration, Mr. De Kay? A. Well, three or four occasions in the last month I have noticed it enough to jar the window sills. That is a sign the house is well built. If it was of a less substantial character, there would have been more of it. Q. Now, what effect, if any, does the noise at night have upon you and your family? * * * A. As a rule, it wakes all of us up. Q. About how often do they run trains in there, Mr. De Kay? A. Most every day; most every night.'

Respondent Gertrude De Kay testified, in part, as follows: 'Q. Now you may state what effect the running of trains has upon you and your property with reference to smoke. * * * A. Why, if the wind is toward the house the house is filled with smoke. A good deal depends upon the weather and the prevailing winds. Q. Well, what are the prevailing winds Mrs. De Kay? A. Usually from the northwest. Q. That would have the effect, then, of driving the smoke towards your property? A. In our bedroom windows, in our north windows. Q. You say your bedroom windows open to the north next to the track? A. Yes, all of our sleeping rooms open to the north. Q. Can, you recall any particular time, Mrs. De Kay, when you especially noticed smoke in your bedroom? A. Well, we heard the train coming, we sat at the window especially to notice so as to be sure just how the smoke came, and it came directly, was wafted into our bedroom window, and filled our room full of black smoke, not only that room, but our dining room and the parlor was filled. Q. Now, Mrs. De Kay, state what the facts are from the running of trains, what effect it has with reference to soot. A. Well, any clothing that is out--The porches are covered with fine soot, the window sills, and so forth; any clothing that is on...