Stuhl v. Great N. Ry. Co.

• Citation: 161 N.W. 501,136 Minn. 158
• Decision Date: 23 February 1917
• Docket Number: No. 19969[120].,19969[120].
• Parties: STUHL v. GREAT NORTHERN RY. CO.
• Court: Supreme Court of Minnesota (US)

136 Minn. 158

161 N.W. 501

STUHL

v.GREAT NORTHERN RY. CO.

No. 19969[120].

Supreme Court of Minnesota.

Feb. 23, 1917.

Appeal from District Court, Stearns County; C. A. Nye, Judge.

Action by John Stuhl against the Great Northern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Syllabus by the Court

Under a constitutional provision that ‘private property shall not be taken, destroyed or damaged for public use without just compensation therefor first paid or secured’ (Const. art. 1, § 13, as amended November 3, 1896), a property owner may recover for special pecuniary damage to private property through the construction and operation of a railroad though the damage is consequential and results from structures or operations that do not invade his land.

This does not give a right of recovery for acts which under general rules of law do not constitute actionable wrong. The right of recovery is substantially the same as against one not armed with the power of eminent domain.

The reasonableness or necessity of the location of the structure is not the test of liability nor is negligence in its operation the sole test. The test is whether the structure is a private nuisance for which an action for damages will lie at common law.

If statutory authority is given for the structure, it cannot be a public nuisance but it may be a private nuisance. The Legislature cannot authorize the maintenance of a nuisance without compensation to one specially injured thereby. M. L. Countryman, of St. Paul, and James R. Bennett, Jr., of St. Cloud, for appellant.

J. B. Himsl, of St. Cloud, for respondent.

HALLAM, J.

In 1909 plaintiff purchased a five-acre tract of land just outside of the platted portion of the village of Albany, and erected a dwelling house thereon which he and his family have since occupied as a home. South of his dwelling is a public highway, and immediately south of the highway is defendant's right of way and tracks.

In 1910 defendant constructed on its right of way, 79 feet from plaintiff's dwelling house, a stockyard with pens and sheds for holding and loading stock. Shipments of stock are usually made twice a week during certain seasons and stock is brought and kept until shipments are made. This causes the noise and foul odors usually incident to stockyards. Albany is situated in a farming and stock-raising community. Stockyards in or adjacent to the village station are necessary. The present location is not the only feasible one though it is the most convenient for shippers and for defendant. The trial court found that plaintiff had suffered damage to his real estate and in the use and occupation of it up to the time of the commencement of this action in 1911 in the sum of $200.

Defendant contends that, the court having found that the stockyards at Albany are properly located and carefully maintained and operated, it must follow that no nuisance either public or private can result from such location and operation. Yet it must be clear that stockyards though prudently managed may, if located near a residence, constitute a private nuisance, and this the court in effect found this stockyard to be. This suggests the real question in the case, which is, Can a property owner recover damages for an injury to his property caused by the construction and maintenance by the railroad company of a structure or facility which is necessary to the operation of the road and which is located in a place where it will do as little damage as possible and at the same time serve its public purpose and is conducted or maintained without negligence? We think in some cases he may and that this is such a case.

We must of course not overlook the fact that this defendant is operating a public utility, that this stockyard is one of its facilities used to that end, and that the property on which it stands is accordingly devoted to a public use, and the question is, What is the liability of defendant as to damages resulting to private parties from property so devoted?

[1] 1. Prior to 1896, art. 1, § 13, of the Constitution of this state read:

‘Private property shall not be taken for public use, without just compensation therefor first paid or secured.’

In 1896 this section was amended so as to add, after the word ‘taken,’ the words ‘destroyed or damaged.’

Under the former provision it was held that the right to damage given by the Constitution was confined to the particular tract of land the whole or part of which was taken. Peck v. Superior Short Line Ry. Co., 36 Minn. 343, 31 N. W. 217;Cameron v. Chicago, Milwaukee & St. Paul Ry. Co., 42 Minn. 75, 43 N. W. 785. Some other authorities are to the effect that under similar constitutional provisions there must be trespass upon or actual appropriation of the corpus of the property to give a right to damages. Lewis, Eminent Domain, § 66; Dillon, Mun. Corp. § 1017; Chicago v. Taylor, 125 U. S. 161, 8 Sup. Ct. 820, 31 L. Ed. 638;McCullough v. Campbellsport, 123 Wis. 334, 101 N. W. 709;Rigney v. City of Chicago, 102 Ill. 64. Yet even under similar provisions the owner of property in the neighborhood of, but not abutting upon, land taken for public use, has sometimes been held to have a claim for damages arising out of the operation of the road as in Richards v. Washington Terminal Co., 233 U. S. 546, 34 Sup. Ct. 654, 58 L. Ed. 1088, L. R. A. 1915A, 887, where damage arose from gases and smoke emitted from locomotives while in a tunnel and by means of a fanning system forced out at the mouth of the tunnel in such manner as to render the property less habitable and to depreciate it in value. It was said that the act of Congress authorizing the tunnel did not authorize the imposition of so direct and peculiar and substantial a burden upon plaintiff's property without compensation to him that if the damage was not reasonably preventable the property should be condemned and if reasonably preventable the statute furnished no excuse.

Under the amended provision of our Constitution it is clear that the right to damages is not dependent on physical injury to the corpus of the property affected. It is sufficient if there is a physical disturbance of a valuable right in the property. It is not necessary that there be a trespass on the owner's real estate. It is sufficient that the construction and operation of the public utility is the cause of some special pecuniary damage and though the damage is consequential the owner may recover. Chicago v. Taylor, 125 U. S. 161, 8 Sup. Ct. 820, 31 L. Ed. 638;Chicago & Western Indiana Ry. Co. v. Enos Ayres, 106 Ill. 518;Dickerman v. City of Duluth, 88 Minn. 288, 92 N. W. 1119;Austin v. Village of Tonka Bay, 130 Minn. 359, 153 N. W. 738.

[2] 2. This does not mean that the amendment gives a right of recovery for acts which under general rules of law do not constitute actionable wrong. The purpose of the change is not to change the substantive law of damages or to enlarge the definition of that...