Lake Shore & M.S. Ry. Co. v. Chicago

• Decision Date: 18 November 1910
• Docket Number: No. 7,664.,7,664.
• Court: Indiana Appellate Court
• Parties: LAKE SHORE & M. S. RY. CO. v. CHICAGO, L. S. & S. B. RY. CO.

48 Ind.App. 584

92 N.E. 989

LAKE SHORE & M. S. RY. CO.

v.CHICAGO, L. S. & S. B. RY. CO.

No. 7,664.¹

Appellate Court of Indiana, Division No. 1.

Nov. 18, 1910.

Appeal from Superior Court, La Porte County; H. B. Tuthill, Judge.

Action by the Lake Shore & Michigan Southern Railway Company against the Chicago, Lake Shore & South Bend Railway Company. From a judgment rendered on sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.John B. Peterson and Glennon, Cary, Walker & Howe, for appellant. F. J. Lewis Meyer, D. E. Morgan, and Kline, Tolles & Morley, for appellee.

MYERS, J.

On August 31, 1909, the appellant was, and for years prior thereto had been, a duly incorporated railway company and engaged in operating a line of steam railroad on its private right of way from the city of Chicago to the city of Buffalo, N. Y., and in Indiana, from the town of Gary to South Bend; that on said day appellee was engaged in constructing on its private right of way adjacent to appellant's right of way a line of railroad-an electric railway between said town of Gary and said city of South Bend-paralleling appellant's line of railroad, a portion of which had been constructed and was being operated; that appellee's cars were operated by an electric system known as the “single phase alternating current”; that, by reason of the proximity and parallelism of the two lines of railroad and the manner of construction and mode employed by the appellee in the operation of its railway, the high tension current of electricity used by appellee greatly interfered with the maintenance and use by the appellant of its system of electric telegraph lines and signals necessary in the operation of its railroad. For the purpose of stopping such interferences, this suit was commenced by appellant to enjoin the appellee from further operating its said line of railway until it should adopt and apply to its railway such electrical devices or other appliances as will neutralize the inductive current of electricity alleged to be the cause of appellant's trouble. A demurrer to appellant's complaint for want of facts was sustained, and judgment on demurrer rendered. The questions presented by this appeal relate to the sufficiency of the complaint.

It must be kept in mind that neither negligence nor unskillfulness nor malice is charged in the construction, maintenance, or operation of appellee's line of railway, and that appellant is basing its right to relief solely upon the broad principle that “one who for his own purpose brings upon his land and conducts and keeps thereon things likely to do mischief, if it escapes, is prima facie answerable for all the damage which is the natural consequence of its escape.” Fletcher v. Rylands, 1 L. R. Exch. 263.

Appellant earnestly insists that the doctrine enunciated in the case cited controls the case at bar, for the reason that appellee is engaged in a business upon its own premises requiring the use of an element which escapes to the premises of appellant, unwarrantably interfering with the latter's use and enjoyment thereof, and is a nuisance when measured by the rule that anything is a nuisance which annoys or disturbs one in the possession of his property, rendering its ordinary use or occupation physically uncomfortable to him. Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U. S. 317, 2 Sup. Ct. 719, 27 L. Ed. 739. This insistence, if sustained and allowed to control the vital questions in this case, must be limited to the maxim, “Sic utere tuo ut alienum non lædas,” often applied where one violates a duty which he owes to another as furnishing a general description of a nuisance. While the principle thus stated is as sound as it is old, “A nuisance does not necessarily exist, even though one may by the use of his own property cause an injury or damage to another. The case may be one known as damnum absque injuria, and the factors of locality, of unauthorized, or unreasonable use are of weight.” Joyce on Nuisances, § 29. It will therefore be seen that the principle involved in this maxim contemplates a legal injury to the property of another “for the rightful use of one's own land may cause damage to another, without any legal wrong.” So a man may do many things under a lawful authority, or in his own land, which may result in an injury to the property of others, without being answerable for the consequences. Indeed, an act done under lawful authority, if done in a proper manner, can never subject the party to an action whatever consequences may follow. A man may enjoy his land in the way such property is usually enjoyed, without being answerable for the indirect or consequential damages which may be sustained by an adjoining landowner. It follows that the maxim, “Sic utere,” etc., is undoubtedly to be so limited in its application as not to restrain the owner of property from a prudent and reasonable exercise of his right of dominion. If in the exercise of his right another sustains damage, it is damnum absque injuria, for in the matter of things and society it is not reasonable that every annoyance should constitute an injury such as the law will remedy or prevent. Joyce on Nuisances, § 32.

In this state, by statute, “whatever is injurious to health; or indecent, or offensive to the senses, or an obstruction to the free use of property so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance, and the subject of an action.” Acts 1881, p. 240; section 291, Burns' Ann. St. 1908. There is no claim that the business as carried on by appellee was injurious to health, or indecent, or offensive to the senses, but that it was an obstruction to the free use of property and essentially interfered with the comfortable enjoyment thereof. The Legislature has declared in general language what constitutes a nuisance, and it is for the court to determine whether the facts charged bring the particular case within the statute. The business carried on by the appellee was not a nuisance per se. It was and is expressly authorized by statute. Acts 1901, p. 461, as amended by Acts 1903, p. 92, c. 36; section 5675, Burns' Ann. St. 1908. But the fact alone that the appellee is engaged in a lawful business is not necessarily a defense by one charged with maintaining a nuisance, for a lawful business may be so conducted, or from its nature, by reason of the surroundings or circumstances, as to become a nuisance. Foor v. Edwards, 90 N. E. 785;Pritchett v. Board, 42 Ind. App. 3, 85 N. E. 121. In this case, on the theory that a party's pleading is presumed to be as strongly in his favor as the facts will warrant (W. B. Conkey Co. v. Larsen [Ind. Sup.] 91 N. E. 163), we may assume that the electrical system used by the appellee was the best so far devised, and that it was carefully and skillfully employed. Appellant's property has not been physically injured, or any of it taken, nor has appellant otherwise been damaged in any stated amount; but it is alleged in substance that the high tension currents of electricity employed by the appellee, through what is scientifically known as induction, caused electrical currents of similar character in all electrical conductors in proximity to the trolley system, thereby interfering with the operation by appellant of its telegraph lines, using electrical currents of small intensity, and that such interference could have been obviated by appellee installing electrical devices and appliances; that upon the completion by the appellee of its proposed road the interference now not continuous will then become continuous, entirely depriving the appellant of the use of said telegraph lines, in value several thousand dollars, to its damage in a sum not capable of being estimated.

The appellee was a quasi public corporation, authorized to exercise the right of eminent domain. Acts 1903, p. 92, § 5; section 5679, Burns' Ann. St. 1908. The public is concerned in the business in which the appellee is engaged. The state has sanctioned it, and vested appellee with authority to select a place of operation. Appellee is not charged with making an unlawful use of any privilege or right conferred upon it by the state, nor with using the premises selected for the purpose of carrying on its business in any manner not...