King v. Vicksburg Ry. & Light Co.

• Decision Date: 19 November 1906
• Citation: 88 Miss. 456,42 So. 204
• Court: Mississippi Supreme Court
• Parties: KATE E. KING v. VICKSBURG RAILWAY AND LIGHT COMPANY

42 So. 204

88 Miss. 456

KATE E. KING v. VICKSBURG RAILWAY AND LIGHT COMPANY

Supreme Court of Mississippi

November 19, 1906

FROM the circuit court of Warren county, HON. GEORGE ANDERSON Judge.

Mrs King, the appellant, was plaintiff in the court below; the railway and light company, the appellee, was defendant there.

The suit was for alleged damages to plaintiff's land and dwelling house resulting, as was charged, from smoke, soot cinders, steam, vibrations and noise created in the operation of defendant's electric power and light plant in the city of Vicksburg. From a judgment in defendant's favor predicated of a peremptory instruction, the plaintiff appealed to the supreme court.

Reversed and remanded.

Hudson & Fox, for appellant.

If the appellee in the operation of its power plant, machinery, dynamos, etc., did so in a proper manner, and consistent with the character of business operated, yet if in doing so it interfered with the rights of appellant in the enjoyment and use of her property in a manner that was not suffered by the public generally, it must respond in damages for any injury she may have sustained.

The facts in this case show beyond controversy that the appellant, prior to the location of a power plant, purchased the property described in this case, and with an abiding faith that she could occupy, enjoy and live from the proceeds of her property as comfortably and as free from soot and smoke, vibration and cinders and other foreign substances as any other investor and resident of the city, she made an outlay of her spare cash to reap a competency; and shortly after her purchase this infant octopus, after the lapse of fourteen years, by studious and continuous expansion, becomes the "little drop of water, the little grain of sand that makes the mighty ocean in the land" to exist and continue to grow, until it becomes "monarch of all it surveys."

The testimony here is that when the plant was first established it was very small, unnoticed and unobjectionable, and no complaint was made, but when the plant grew with the needs of the city, we find the installation of more and heavier machinery to light up the streets. Subsequently additional tons of machinery were attached; then came the displacement of the old machinery, and additional new machinery. With this enlargement, one stack discharged the smoke. However, not being content with this expansion, appellee's predecessor purchased an electric railway franchise and installed about seven miles of system through the streets of Vicksburg, which is now in operation. Since the introduction of this system, in order to operate the same appellee installed more, and heavier, and newer, and larger machinery, and put in two additional boilers, and on account of it being required to burn more coal, appellee then built and has in use an additional smoke stack to meet the volume of smoke.

While these extensions and repairs were being made the plant became more offensive to the peace, quiet and decency of the neighborhood, with its shaking, jarring, queer and screeching noises day and night, and great volumes of smoke and soot raining down upon appellee and her property day and night, breaking the plastering from the houses, jarring the frame work thereof so that the doors and windows became unbalanced and refused to shut, and continuously rattling in their casings, and the water in the cisterns is continuously kept discolored and filthy, so much so until it cannot be used for domestic purposes, and on account of the strong, distasteful coal concoction entering into the water it cannot be drunk; the guttering of the houses is destroyed within two years by the heavy deposit of coal soot, which, when dampened, causes the sulphuric acid to destroy it. Otherwise the life of a tin gutter is twenty (20) years, yet according to the testimony here appellant must replace the guttering of her house ten times oftener than those of others in the city. We find further from the testimony that those who did and who do now occupy these houses and live in the immediate vicinity, are unable to use their own premises to wash any of their clothes on account of the greasy soot that literally fills the air. During the long, hot summer appellant and her tenants, in order to make life endurable to live there, must keep their front doors and windows shut and sash closed tight in order to keep out the smoke. How disagreeable and what great quantities of smoke must boil into their houses, when the occupants would prefer the exhausting heat of the summer to the smoke. Yet, despite these precautions to avoid the penetration of this filth, yet by constant contact with the windows, doors, etc., it does sipe through and soils the curtains and linens of the rooms and beds.

The pharisaical plagues that continually prey upon the peace and comfort of our client are without a good Moses to hold them at bay in order that she may be relieved of her bondage, but it is a never-ending downpour. Whether her doors and windows fit, whether she has any guttering, any plastering, any water, or can rent her houses, or can use the front porch thereof, or sit on her front gallery without soiling her linens and clothes, she must endure until the plant becomes so obnoxious she must abandon her property and consign it without compensation to appellee, for if appellee continues and meets the requirements of its increasing business, it must assume such proportions as to absolutely drive out our client and her tenants. Think of the operation of a seven-hundred horse power engine, with two batteries of great boilers consuming five hundred tons of coal in one month, or sixteen tons a day, within eighty feet of your door, constantly belching forth great volumes of smoke and soot and completely overshadowing the surroundings, destroying the atmosphere and paint on the houses, and shaking the very mud cells of the earth as well as the houses.

Because one possesses the aggregation of wealth, does such possession invest it with the special prerogative to operate without reference to the rights of others? We are informed by innumerable ancient and modern adjudications that such cannot be done; that the right to be protected in one's property, life and liberty cannot be taken away by even constitutional enactment. Such a right is a natural right and is still and always will be unhampered by municipal co-operation.

It occurs to us that the effort of the judiciary, before making a deliverance, is to study existing conditions. For instance, we have malum in se and malum prohibitum. Since the proclamation of these legal rights the advancement of the ages has made some objects mala in se that were formerly malum in prohibita.

By way of analogy, let us see how harmless anything may be in its incipiency and finally become a tyrant and a menace. Steam was first discovered in a tea kettle. Its existence was fraught with no more apprehension of interference with natural rights than the invention of letters, yet ingenuity saw its possibilities, and as the age became more strenuous it was put upon wheels and then upon rails, in the shape of vehicles, with a boiler the size of a barrel and freight carriers about the size and capacity of a two-horse wagon. These contrivances, as then operated, interfered with the rights of no one, and every one welcomed their presence; but when Mr. Robert Stevenson invented what is known as "Puffing Billie," with its bells and whistles and other clangor and paraphernalia, then the mischief arose and hell became hitched up in harness, and ever since it has been "a fight of the survival of the fittest" between the people and the railroads, and this little "Puffing Billie," operated at a weight of fifteen thousand pounds, has suddenly assumed the proportions of one hundred and twenty-five tons, and the little cracker boxes that went in its trail now, empty handed, weigh twenty tons, with a capacity of eighty more; and yet the development of this invention is only in its infancy. These concerns charge for the compensation of these grievances by adding a sufficient per cent to their earnings and expect to pay for them, and why not make them surrender the collection for the interferences with the rights of others? We believe that the American adjudications on this subject finds its origin in Roman civil law, "that you must so use your own as not to interfere with the rights of others." This is a just and wise proverb of the law, and is a great arbiter between neighbor and neighbor, and should always live unfractured or uncompromised by adjudications; otherwise one neighbor's peace is at the mercy of the other. For instance, suppose I am your neighbor, and I erect on my adjoining lot to you a sawmill, a boiler and a blacksmith shop, and produce the injuries to your property that are here complained of; and in addition thereto, by reason of the great noise, you are prevented from holding an ordinary conversation with your family. Am I permitted to continue to operate this business, if I show that it is lawfully done and according to established rules prescribed for the operation of such a business, notwithstanding the fact that you are deprived of the use of your own house, your peace and happiness by so doing?

If this must be the legal right, by which rights are to be measured, then I can designedly locate by you and make it lawfully so disagreeable to your habitation as to effect your removal and purchase your valuable estate at a sacrifice. This ruling, we think, would amount to taking one's property without due process of the law.

In our research, in order that we might justly consider this complaint for our client, we have delved into and scrutinized more than a hundred authorities in which this...