Smith v. St. Paul, M. & M. Ry. Co.

• Decision Date: 27 July 1905
• Citation: 39 Wash. 355,81 P. 840
• Court: Washington Supreme Court
• Parties: SMITH et ux. v. ST. PAUL, M. & M. RY. CO.

81 P. 840

39 Wash. 355

SMITH et ux. v. ST. PAUL, M. & M. RY. CO.

Supreme Court of Washington

July 27, 1905

Appeal from Superior Court, Spokane County; Geo. W. Belt, Judge.

Action by A. L. Smith and wife against the St. Paul, Minneapolis &amp Manitoba Railway Company. From a judgment for plaintiffs defendant appeals. Reversed.

M. J Gordon and C. A. Murray, for appellant.

Barnes & Latimer, S. C. Hyde, and W. F. Townsend, for respondents.

ROOT J.

Respondents are the owners of lots 7 and 8 in block 6 of Ide &amp Kauffman's Addition to Spokane, which lots face upon the north side of Bridge avenue, a public street 60 feet in width, having an east and west course. Said lots extend from said avenue northerly 117 feet along the line of Cannon street, which is 60 feet wide, running north and south. Prior to this action appellant had constructed and was operating a railway line, which, for a distance of about a quarter of a mile to the east and for a half mile to the west of respondents' property paralleled said Bridge avenue at a distance of 63 1/2 feet to the south thereof. In front of respondents' property, and for some distance on either side, there is an excavation or cut of some 12 feet in depth, in which appellant's railway track is laid. The nearest rail is 123 1/2 feet distant from the nearest portion of respondents' property. Respondents allege that the ringing of bells, the sounding of whistles, and other noises incidental to the running of trains upon this railway track, together with the smoke, fumes, soot, and cinders from the locomotives, and the jarring of the earth by passing trains, and the excavations in cross-streets, have occasioned serious damage to their property, and have materially reduced the market value thereof. They brought this action to recover said damages, basing their right of action upon that portion of section 16, art. 1, of the state Constitution. which reads as follows: 'No private property shall be taken or damaged for public or private use without just compensation having been first made or paid into court for the owner.' They recovered judgment in the lower court, from which appeal is taken to this court.

It is not contended that the noises or other annoyances complained of are other than those which are naturally and necessarily incident to the proper operation of the railway, and it is not contended that any or all of these things constitute a nuisance. But it is urged that their property is 'damaged,' within the meaning of that term as used in the Constitution. This railway is built upon land purchased or condemned by the railway company, except where it crosses public streets. No street is crossed at any point adjacent to respondents' property. It is contended however, that, inasmuch as appellant has made an excavation through the streets which has impaired that accessibility of said streets, near respondents' property, they are injured thereby. Appellant contends that all of these injuries, complained of by respondents, are occasioned by results which are naturally and necessarily incident to the operation of the road which is a legitimate business, and that they do not constitute damages such as are contemplated by the constitutional provision aforesaid. It is urged that, in so far as they are injurious to respondents at all, they are damnum absque injuria. Appellant maintains that the constitutional provision supra, and similar provisions found in various state Constitutions, were inserted not with the intention of giving a cause of action for every injury which might occur, but to place public corporations upon a plane with private corporations and individuals, and to make such public corporations liable under the same circumstances that would hold persons and private corporations liable. It seems to be conceded that prior to the adoption of these constitutional provisions containing the word 'damaged' or equivalent expressions the word 'taken,' as found in most of the Constitutions, was not construed to give any right of action against states, counties, and cities, public or quasi public corporations, where no tangible property was physically taken, even though the use of said property was materially interfered with, and its value depreciated. Several of the older states amended their Constitutions by adding the word 'damaged,' and a number of the new states placed said word in their organic law at the time of its original adoption. Our attention has been called to this or a similar provision in the Constitutions of the following states: California, Colorado, Georgia, Illinois, Missouri, Nebraska, Pennsylvania, Texas, and West Virginia, and we believe the same or similar provisions are found in the Constitutions of Arkansas, Kentucky, Montana, and the Dakotas. In California, Georgia, Illinois, Missouri, Pennsylvania, and West Virginia the contention of appellant appears to be upheld, and damages seem not to be allowed where the same are consequential or incidental merely to the carrying on of a legitimate business. In Nebraska and Texas the courts evidently hold the other way. There are many cases holding that any obstruction to a public street in front of or adjacent to real property entitles the owner of said property to a right of recovery against the one causing said obstructions, even though they be used as a railway, viaduct, or for other legitimate purpose. But the weight of authority appears to be against the right of a property owner recovering for damages occasioned by the legitimate use by another of his own property, so long as said damages are not such as physically affect his property, or some right appurtenant thereto. This was the rule of law prior to the adoption of these constitutional provisions including the word 'damaged,' and there seems to be sound reason for the contention that this term was placed in new and amended Constitutions so that public and quasi public corporations should be held for damages upon the same grounds as others. Such seems to have been the view taken by this court in the case of Brown v. Seattle, 5 Wash. 35, 31 P. 313, 32 P. 214, 18 L. R. A. 161, where the following language was used, to wit: 'The earlier Constitutions of the several states in the Union contained, with but few exceptions, a provision that private property should not be taken for public use without just compensation. The Constitution of the United States contains substantially the same provision, which was applicable to the territory. Under these provisions, however, owing to the interpretation put upon the word 'taken' by the courts of the several states, with the exception of the courts of Ohio, great and manifest injury was constantly done by the states, counties, and cities to the private citizen without any legal means of reimbursement. The theory was that wherever the state, through its legislative acts, authorized any of its agents to make public improvements, so long as these agents carried on their work within the scope of their authority, and without negligence, they were liable to no one, whatever damages might accrue. A citizen was thus left without protection in all that large class of cases where, through some act done for the public benefit, or for a use public or quasi public, although no part of his tangible property was physically taken, the use or value of his property was palpably impaired, or was stripped of incidents comprised within the conception of complete property rights, which brought to those rights quite as much value as the mere possession of the property.' In construing a word or expression of a statute or Constitution susceptible of two or more meanings the court will give that interpretation most in accord with the manifest purpose of the statute or constitutional provision. Where the word or expression constitutes an amendment, the court will consider the old law, the mischief sought to be corrected, and the remedy. With all these in mind, the court will give the new term or language such construction as will effectuate the evident intention and purpose of the makers. Under the Constitutions providing compensation for the taking of property it was almost uniformly held that public corporations might in different ways greatly injure the property and property rights of others, but could not be held in damages unless there was an actual taking of some portion. The word 'damaged' being employed to give relief to those thus affected by the actions of public or quasi public corporations, it is argued that it should not be assumed that said word was intended to have any other and wider meaning than it then possessed as a well-understood legal term. Ordinarily one may use his own property in any legitimate manner he chooses; and, prior to the employment of the word 'damaged' in state Constitutions, no such property owner was liable to any one else for any injuries consequent upon or incidental to such lawful use of his own property. Applying to the constitutional provision in question the usual tests and rules, and having due consideration for the weight of judicial opinion as we find it expressed by the courts that have passed upon this question, we are disposed to hold that the word 'damaged,' as used in our Constitution, does not give a right of action in a case where the injuries would have been, in the absence of said word, damnum absque injuria in an action against a natural person or private corporation. It would seem to be only reasonable to suppose that persons acquiring property in a thickly settled community must have anticipated the use of neighboring property in a manner not always to be agreeable and pleasant. A person buying property in a growing city must be presumed to have done so for the benefits to come to him by reason...