Mississippi Power Co. v. Ballard Et At

• Decision Date: 09 April 1934
• Docket Number: 30975
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI POWER CO. v. BALLARD et at

153 So. 874

170 Miss. 479

MISSISSIPPI POWER CO. v. BALLARD et at

No. 30975

Supreme Court of Mississippi

April 9, 1934

Division A

1 NUISANCE.

Whether electrical displays over electrical substation during storms alleged to result in loud and violent explosions and shooting of balls of fire into air and on ground were of such character as to materially affect plaintiffs' use and enjoyment of their residence property and diminish market value thereof held for jury.

2 NUISANCE.

In action for damages from operation and maintenance of electric substation near plaintiffs' residence, testimony of other residents respecting disturbances emanating from substation and effect on them and conditions created thereby in their residences, held admissible as tending to show existence and harmful effect of disturbances.

3 NUISANCE.

Instruction authorizing recovery for depreciation in market value of residence property from mere location, operation, and presence of electric substation, regardless of whether alleged noises, explosions, and reflections of light emanating from substation were of such nature, frequency, and intensity as to constitute substantial and material interference with comfort and convenience of plaintiffs' use of property held erroneous.

HON. J Q. LANGSTON, Judge.

APPEAL from circuit court of Marion county, HON. J. Q. LANGSTON, Judge.

Action by A. M. Ballard and another against the Mississippi Power Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

See, also, 166 Miss. 631, 146 So. 874.

Reversed and remanded.

Eaton & Eaton, of Gulfport, Ford & McGehee and Rawls & Hathorn, all of Columbia, and Wilbourn, Miller Wilbourn, of Meridian, for appellant.

The substation was on appellant's own property, lawfully acquired by appellant. The erection thereon of a substation was not in violation of any state or municipal zoning law. The substation was a necessary structure in the discharge of appellant's lawful business in the service of the public.

Sections 1504, 1505, 1506 and 1507, Code of 1930; Hazlehurst v. Mayes, 84 Miss. 7, 36 So. 33, 64 L. R. A. 805; Gulf Coast Ice & Mfg. Co. v. Bowers, 80 Miss. 581, 32 So. 114; McCullough v. Interstate Power & Light Co., 300 P. 165; Crawford v. Ala. Power Co. (Ala.), 128 So. 454; Brandt v. Spokane & Inland Empire R. Co., 78 Wash. 214, 138 P. 871, 52 L. R. A. (N. S.) 760; Bradley v. Spokane & Inland Empire R. Co., 140 P. 688, L. R. A. 1917C 225; State ex rel. Chelan Electric Co. v. Superior Court, 253 P. 115, 58 A. L. R. 779; Commonwealth v. Morrison, 83 N.E. 415, 197 Mass. 199, 14 L. R. A. (N. S.) 194; 20 C. J. 324.

It was not alleged nor proved that the location, erection and maintenance of the substation was negligent and the court below correctly charged the jury peremptorily to that effect. The location, erection, maintenance and operation of the substation being lawful and non-negligent, the substation was not a nuisance.

Continental Oil Co. v. City of Wichita Falls, 42 S.W.2d 236; Giller v. West, 69 N.E. 548; Marshall v. City of Dallas, 253 S.W. 887; Peck v. Newburg Light & Power Co., 116 N.Y.S. 433; McCarty v. National Carbonic Gas Co., 81 N.E. 549, 13 L. R. A. (N. S.) 465; Hughes v. General Electric Light & Power Co., 54 S.W. 723; McCann v. Strang, 97 Wis. 551, 72 N.W. 1117; Heath v. Brighton Corp. (1908), (Eng.), 98 L. T. (N. S.) 718, 72 J. P. 225, 24 Times L. R. 414.

That which is lawful cannot be a nuisance.

Chichester et al. v. Kroman, 128 So. 166, 221 Ala. 203; State v. L. & N. Railroad Co., 48 So. 391, 158 Ala. 208; Southern R. R. Co. v. Ables, 45 So. 234, 153 Ala. 523; Jones v. Adler et al., 62 So. 777, 183 Ala. 435; Crofford v. A. B. & A. R. Co., 48 So. 366, 158 Ala. 288.

The proper doing of that which the law authorizes is not a nuisance and appellees cannot recover from appellant for damages based upon the claim that the substation is a nuisance.

Maddox v. Georgia R. R., 116 Ga. 64; Central of Ga. Power Co. v. Hamm, 139 Ga. 567, 573; Jones v. North Ga. Electric Co., 125 Ga. 618, 625; Sheppard v. Ga. Ry. & Power Co., 31 Ga.App. 653, 657; Smith v. Dallas Co., 27 Ga.App. 22, 25; Montgomery Light & Power Co. v. Charles, 258 F. 723; McCutchen v. Blanton, 59 Miss. 116; King v. Vicksburg Railroad Co., 88 Miss. 456, 42 So. 204, 6 L. R. A. (N. S.) 1036; Indian Creek Drainage District v. Garratt, 85 So. 312, 123 Miss. 301; Robertson v. N. O. & G. N. Railroad Co., 158 Miss. 24, 129 So. 100; Robbins v. Scranton, 217 Pa. 577, 66 A. 977; Dean v. Southern Railroad, 112 Miss. 334, 73 So. 55.

The substation involved here is an appropriate instrumentality, essential under the proof in this record, to the effective discharge by the appellant of its public function in the direct and immediate service of the public in furnishing them electric energy.

Dean v. Southern Railroad, 112 Miss. 334, 73 So. 55; Roman Catholic Church v. Penn. Railroad, 207 F. 897, L. R. A. 1915E 623; Green v. Lake, 54 Miss. 540; Canton v. Cotton Warehouse, 84 Miss. 268; Moore v. Swamp Drainage Co., 88 So. 522, 125 Miss. 842; Railroad v. Brown, 64 Miss. 479, 1 So. 637; Railroad v. Stingley, 71 So. 376, 111 Miss. 236; Y. & M. V. R. R. Co. v. Hughes, 103 So. 805, 139 Miss. 177; White v. Yazoo City, 27 Miss. 357; Homochitto v. Withers, 29 Miss. 21; Taylor v. Chicago, Milwaukee & St. Paul R. Co., L. R. A. 1915E 635; Smith v. St. Paul, M. & M. Railroad Co., 39 Wash. 355, 70 L. R. A. 1018; Bennett v. Long Island Railroad Co., 181 N.Y. 431, 74 N.E. 418; Beseman v. Penn. Railroad Co., 50 N. J. L. 235, 13 A. 164; Uvalde Electric Light Co. v. Parsons, 138 S.W. 163; St. Louis & S. F. Railroad v. Shaw, 92 S.W. 30, 6 L. R. A. (N. S.) 245; Oklahoma v. Dunham, 88 S.W. 849; Houston Railroad v. Barr, 99 S.W. 438; Grossman v. Railroad, 92 S.W. 836; Birmingham Railroad v. Smyer, 181 Ala. 121, 61 So. 354, 47 L. R. A. (N. S.) 597; Peck v. Newburg Light, Heat & Power Company, 116 N.Y.S. 433; Montgomery Light & Water Power Company v. Charles, 258 F. 723; Standard Oil Co. et al. v. Kahn, 141 S.E. 643; Higgins v. Produce Co., 81 A. L. R. 1199, 242 N.W. 109; Brown v. Easterday, 194 N.W. 798; Nevins v. McGavock, 106 So. 597; Comfort v. Kosciusko, 88 Miss. 611, 41 So. 268; Desporte v. Biloxi, 100 So. 387, 136 Miss. 542; Lowther v. So. Carbon Co., 112 So. 711; Dreanan v. Mason, 133 So. 689; Alabama Power Co. v. Keystone Lime Co., 191 Ala. 58, 67 So. 833.

Damages cannot be received from diminution in value of property by reason of the lawful use of nearby property by its owner, if no public or private nuisance is created.

Marshall v. City of Dallas, 253 S.W. 887; Brown v. Easterday, 194 N.W. 798; Nevins v. McGavock, 106 So. 597; Hughes v. General Electric Light & Power Co., 54 S.W. 723.

The court, also, erred in admitting testimony to go to the jury over the objection of the appellant as to the danger sign set up at the substation and as to the apprehensions or fears of the occupants of other houses and of the appellees.

Roy J. Goss, B. J. Goss and Hall & Hall, all of Columbia, for appellees.

It matters not how lawful appellant's business may be, and it matters not that it is serving the public; if it has damaged appellees' property, then it is liable in law for such damage, and the lawful nature of its business and its character as a public service corporation do not clothe it with immunity.

Ganster v. Metropolitan Electric Co., 64 A. 91; Rogers v. Philadelphia Traction Co., 182 Pa. 473, 38 A. 399, 61 A. S. R. 716; Fendley v. City of Anaheim, 294 P. 769.

Counsel for appellant have cited no authority whatever by which a taking or damaging of private property by a public service corporation can be permitted without just compensation being allowed for such damage.

The substation is a nuisance.

20 R. C. L. 380; Higgins v. Bloch, 104 So. 429; Town of Vernon v. Edgeworth, 42 So. 749.

It has been observed occasionally that in an action for creating a nuisance, the existence of the nuisance fixes the liability without proof of negligence on the part of the defendants.

20 R. C. L. 381; Y. & M. V. R. R. v. Sanders, 87 Miss. 609; Green v. Lake, 54 Miss. 540; Dean v. Southern Railway, 73 So. 55.

Counsel for appellant have repeatedly pointed out that according to the testimony of the electrical experts there is absolutely no danger of any person being injured by the explosion of balls of fire on the substation. Conceding for the sake of argument that there is no danger, still even the appellant must admit that the entire neighborhood has been put in great fear.

Everett v. Paschall, 61. Wash. 47, 111 P. 879, Ann. Cas. 1912B, 1128; King v. Vicksburg, etc., 88 Miss. 486; A. & V. Ry. Co. v. King, 93 Miss. 379, 47 So. 857; Robertson v. N. O. G. N. R. R. Co., 158 Miss. 24, 129 So. 100.

Noises may be of such a character and intensity as to so unreasonably interfere with the comfort and enjoyment of private property as to constitute a nuisance, and, in such cases, injury to the health of the complaining party need not be shown.

Higgins v. Produce Co., 81 A. L. R. 1199.

The authorities are numerous which hold that noise alone, or noise accompanied by vibration, if it be of such character as to be productive of actual physical discomfort and annoyance to a person of ordinary sensibility, may create a nuisance, and may be the subject of an action at law, or an injunction from a court of equity, though such noise and vibration may result from the carrying on of a trade or business in a town or city.

20 R. C. L. 445.

In assessing the damages for the maintenance of a nuisance in the neighborhood of a residence or dwelling, the jury may look to such injury as occurs in the use of the property as a residence, taking into consideration the discomfort and annoyance...