Terrell v. Chesapeake & O. Ry. Co

• Decision Date: 18 November 1909
• Citation: 110 Va. 340,66 S.E. 55
• Court: Virginia Supreme Court
• Parties: TERRELL. v. CHESAPEAKE & O. RY. CO.

(110 Va. 340)

66 S.E. 55

TERRELL.

v.CHESAPEAKE & O. RY. CO.

Supreme Court of Appeals of Virginia.

Nov.18, 1909.

1. Railroads (§ 222*) — Nuisance — Roundhouse Yard—Private or Public Capacity.

Where a railroad company maintained certain tracks in its roundhouse yard on which it stored, blew out, cleaned, and fired engines, while not in use and in the open air, which constituted a nuisance to adjoining property, the railroad's acts were committed in its private and not in its public capacity; and hence it was liable to such adjoining property owners for the damage sustained without reference to whether its conduct was negligent or not.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. § 721; Dec. Dig. § 222.*]

2. Corporations (§ 370*) — Public Service Corporation—Duties of Nonpublic Nature.

A public service corporation in the performance of duties not of a public nature, though incidental to those of a public character, stands on the same footing as a private corporation.

[Ed. Note.—For other cases, see Corporations, Dec. Dig. § 370.*]

3. Railroads (§ 222*) — Roundhouse — Terminal Yards—Nuisance.

That a railroad company has legislative authority for the construction of workshops and yards within specified limits does not justify it as against a particular householder in so constructing its plant as to constitute a nuisance.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. § 721; Dec. Dig. § 222.*]

Error to Corporation Court of Charlottesville.

Action by N. A. Terrell against the Chesapeake & Ohio Railway Company. From a judgment sustaining a demurrer to the declaration, plaintiff brings error. Reversed, demurrer overruled, and remanded.

Dabney & Fowler and Micajah Woods, for plaintiff in error.

D. H. & Walter Leake, for defendant in error.

CARDWELL, J. The plaintiff in error brought an action of trespass against the Chesapeake & Ohio Railway Company, and the declaration states that he was seised and possessed of a certain lot of land with a dwelling house thereon, known as No. 923 East Market street, in the city of Charlottesville on the north side of said street, which lot fronts about 60 feet on said street and runs back in a northerly direction between parallel lines about 200 feet; that the Chesapeake & Ohio Railway Company, a corporation organized under the laws of the state of Virginia, was possessed of a certain lot of land lying on the south side of East Market street in said city, and directly opposite the plaintiff's premises; that on a part of its said lot, some time prior to the year 1903, the defendant had erected a building known as a "roundhouse, " but a large part of the defendant's lot in front of plaintiff's premises was prior to the year 1905 used for the purpose of receiving, storing, and delivering car and locomotive supplies and materials; that it became and was the duty of the defendant so reasonably to use its said lot as not to injure or interfere with the possession, use, and enjoyment by the plaintiff of his said property, "yet the said defendant, not regarding its said duty in this behalf, but contriving and wrongfully and unjustly intending to injure and aggrieve the said plaintiff in the use and possession of his said property, heretofore, to wit, on the —— day of——, 1905, laid on the said part of its said lot not occupied by the said roundhouse, and very near, to wit, 75 feet from and in front of the said plaintiffs property, a number of short railroad tracks, to wit, seven, in a segment or semicircle, which said tracks have been used by the said defendant for the purpose of standing, storing, and keeping such of its locomotives as were not in immediate use on divers days and times from the above date to the commencement of this suit;" that "here numbers of locomotives were kept by said defendant and cleaned, fired, steamed, and repaired, without any roundhouse or other structure inclosing or covering the same, and without smokestacks of sufficient height to carry the steam, smoke, dust, ashes, cinders, and odors above the said plaintiff's property;" that "from the engines so placed, hostled, tended, and handled there were daily and many times during the day and night the ringing of bells, the blowing of whistles, the prolonged and deafening roar of steam when boilers were blown off to be washed, and the noise of blowers at work raising steam, and vast clouds of smoke, soot, dust, cinders, and ashes poured from the smokestacks of the said locomotives over, upon, into, and through and about the said plaintiff's dwelling and premises, and, when the doors and windows of the said dwelling were open for light and air, smoke, cinders, soot, ashes, and dust were discharged from said locomotives and blown in and through said doors and windows settling upon the occupants of the house, and upon the furniture and furnishings, soiling clothes, bedding, curtains, food, and other articles therein, and accompanied by foul and offensive odors which tainted and corrupted the atmosphere and rendered the dwelling and premises unhealthy and unfit for habitation, and also covered the shade trees in front of said dwelling with soot and dust, and blackened and destroyed them and the flowers and other vegetation on and about said premises, and by means of the said smoke, dust, and soot discharged as aforesaid on and about the said plaintiff's premises, the fences thereon and the front of his said dwelling have been blackened and rendered most dirty, disreputable and unsightly in appearance. And by reason of the aforesaid unreasonable, wrongful, and unjust use by the said defendant of its said premises the said plaintiff has been and is greatly damaged in the use and possession of his said property, and the marketable and rental value of the same has greatly depreciated by means of the committing of the grievances as aforesaid by the said defendant, to the damage of the said plaintiff $1,500."

The defendant demurred to the declaration, in which demurrer the plaintiff joined; the grounds of demurrer being that no negligence on defendant's part is alleged, and that independent of negligence the defendant is not liable.

Upon the hearing of the cause upon the demurrer the corporation court of Charlottesville sustained the demurrer, and to that judgment this writ of error was awarded.

That the defendant is a public service corporation is not questioned, and it is also conceded that the declaration sets out a nuisance, but the claim is that it is not an actionable nuisance. Therefore the sole question for determination is whether the nuisance was committed by the defendant in its private capacity, or as incidental to its public function of running trains for the carrying of passengers and freight.

The declaration, it may be said, is in all of its essential features identical with that considered by this court in Townsend v. Norfolk Ry. & L. Co., 105 Va. 22, 52 S. E. 970. 4 L. It. A. (N. S.) 87, 115 Am. St. Rep. 842, and the plaintiff urges that that case controls the decision in this; while the defendant, with equal earnestness, claims that it is controlled by the earlier case of Fisher v. Seaboard A. L. Ry. Co., 102 Va. 363, 46 S. E. 381.

In the earlier of these cases Fisher sued to recover damages for a nuisance caused by "running trains and locomotives over and upon" defendant's track and trestle; while in this case the declaration alleges that defendant used its lot in front of and adjacent to its roundhouse for the purpose of "standing, storing, and keeping such of its engines as were not in use, " and "cleaning, firing, steam-ing, and repairing" same, and that "from the engines so placed, hostled, tended, and handled" the nuisance complained of resulted.

In the Townsend Case, as in this, negligence was not charged, but in both facts constituting the nuisance are duly alleged, and in the Townsend Case the operation of a power house for generating electricity to run an electric railway was the modus injuria?, and this court, though conceding that the electric railway was a public service corporation with the power of eminent domain, held that it had no legislative authority to operate its power house to the injury of the plaintiff, Townsend, on the ground that such operation was not incidental to its public function of...