Webster Richards v. Washington Terminal Company

• Decision Date: 04 May 1914
• Docket Number: No. 52,52
• Citation: 58 L.Ed. 1088,233 U.S. 546,34 S.Ct. 654
• Parties: WEBSTER RICHARDS, Plff. in Err., v. WASHINGTON TERMINAL COMPANY
• Court: U.S. Supreme Court

233 U.S. 546

34 S.Ct. 654

58 L.Ed. 1088

WEBSTER RICHARDS, Plff. in Err.,

v WASHINGTON TERMINAL COMPANY.

No. 52.

Argued November 7, 1913.

Decided May 4, 1914.

Messrs. Hugh H. Obear, Charles A. Douglas, Thomas Ruffin, Edward F. Colladay, Paul Sleman, and Harry F. Lerch for plaintiff in error.

Messrs. John W. Yerkes, John J. Hamilton, and George E. Hamilton for defendant in error.

[Argument of Counsel from page 547 intentionally omitted] Mr. Justice Pitney delivered the opinion of the court:

Plaintiff in error, who was plaintiff below, commenced this action in the supreme court of the District of Columbia to recover for the damage to his property resulting from the maintenance of an alleged nuisance by defendant by means of the operation of a railroad and tunnel upon its own lands near to, but not adjoining, those of plaintiff. Defendant having pleaded not guilty, the issue came on for trial by jury, and at the conclusion of plaintiff's evidence a verdict was directed in favor of defendant. The court of appeals affirmed the judgment (37 App. D. C. 289), and a writ of error brings the controversy under the review of this court.

An agreed abridgment of the evidence upon which the ruling of the trial justice was based is embodied in the bill of exceptions. From this it appears that plaintiff is and has been since the year 1901 the owner of lot 34 in square 693 in the city of Washington, having a frontage of 20 ft. upon the westerly side of New Jersey avenue, southeast, and an average depth of 81 ft., with improvements thereon consisting of a three-story and basement brick dwelling house containing ten rooms, known as No. 415 New Jersey avenue. The rear windows upon all the floors of the house open in the direction of the railroad tracks that lead from defendant's tunnel. The south portal of this tunnel opens within square 693, and near its northeasterly corner, and the tunnel extends thence in a northeasterly direction, passing under the Capitol and Library grounds and First street N. E., to the Union Station at Massachusetts avenue. There are two sets of railroad tracks in the tunnel and leading from it, and as these emerge from the south portal they extend in a general southwesterly direction up an incline or grade across the central portion or square 693 on to an elevated structure which carries the tracks over and beyond South Capitol street. The tunnel and these tracks are used for the passage of trains running both northwardly and southwardly, about thirty each day, all of them being passenger trains with the exception of an occasional shifting engine. The trains frequently pass in and out of the tunnel without stopping, but trains also very often stop at or near a switch tower that is situate near the center of square 693. From the nearest portion of plaintiff's house to the center of the south portal, the distance in a straight line is about 114 ft., there being three intervening dwelling houses, two of which have been purchased and are now owned by defendant. From the rear end of plaintiff's lot to the middle of the tracks southwestwardly from the portal the distance in a straight line is about 90 ft. Plaintiff's property has been damaged by the volumes of dense black or gray smoke, and also by dust and dirt, cinders and gases, emitted from the trains while passing over the tracks and in or out of the tunnel, or standing upon the tracks near the signal tower. There is a fanning system installed in the tunnel which causes the gases and smoke emitted from engines while in the tunnel to be forced out of the south portal, and these gases and smoke contaminate the air, and also add to the inconvenience suffered by plaintiff in the occupation of his property. His house was pleasant and comfortable For purposes of occupation before the construction of the tunnel and tracks, but since then it has not only depreciated in value, but the tenant removed therefrom, and plaintiff was obliged to occupy the house himself by reason of his inability to rent it. The property has depreciated from a value of about $5,500 to about $4,000, and the rental value from $30 per month to $20 per month. The furniture and other belongings in the house have been depreciated from a value of $1,200 to $600, all of which depreciation is due to the presence of smoke, cinders, and gases emitted from passing trains and from the mouth of the tunnel, which smoke, cinders, and gases enter the dwelling house and settle upon the furniture and other personal property contained in it, contaminating the air and rendering the house objectionable as a habitation. The house has also been damaged by vibrations caused by the movement of trains on the track or in the tunnel, resulting in cracking the walls and wall paper, breaking glass in the windows, and disturbing the peace and slumber of the occupants.

The defendant, the Washington Terminal Company, is the owner of the tunnel and of the tracks therein, but its ownership of tracks ceases at the south portal. The tracks extending therefrom in a southwesterly direction are owned and used by other railroad companies, but the movement of the trains is controlled by defendant.

The tunnel and the tracks leading from it across square 693 were located and constructed and are now maintained under the authority of acts of Congress of February 12, 1901, and February 28, 1903 (31 Stat. at L. 774, chap. 354; 32 Stat. at L. 909, chap. 856), in accordance with plans and specifications approved by those acts. No claim is made by plaintiff that the tunnel, the tracks in square 693, and the trains operated therein and thereon, were constructed, operated, or maintained in a negligent manner; and it is conceded that the tunnel and tracks were built upon property acquired by purchase or condemnation proceedings, and were constructed under authority of the acts of Congress and of permits issued by the Commissioners of the District of Columbia.

Such being the essential facts to be deduced from the evidence, we have reached the conclusion, for reasons presently to be stated, that with respect to most of the elements of damage to which the plaintiff's property has been subjected, the courts below correctly held them to be damnum absque injuria; but that with respect to such damage as is attributable to the gases and smoke emitted from locomotive engines while in the tunnel, and forced out of it by means of the fanning system through a portal located so near to plaintiff's property that these gases and smoke materially contribute to injure the furniture and to render the house less habitable than otherwise it would be, there is a right of recovery.

The acts of Congress referred to, followed by the construction of the tunnel and railroad tracks substantially in the mode prescribed, had the effect of legalizing the construction and operation of the railroad, so that its operation, while properly conducted and regulated, cannot be deemed to be a public nuisance. Yet it is sufficiently obvious that the acts done by defendant, if done without legislative sanction, would form the subject of an action by plaintiff to recover damages as for a private nuisance.

At the same time, there is no exclusive and permanent appropriation of any portion of plaintiff's land, which, indeed, does not even abut upon defendant's property. The acts of Congress do not in terms provide for the payment of compensation to property owners damnified through the construction and operation of the tunnel and railroad lines in question, except to those whose lands, or a portion thereof, were necessarily appropriated. For damages, whether direct or consequential, to noncontiguous parcels such as that of plaintiff, there is no express provision. But § 9 of the act of 1903 (32 Stat. at L. 916, chap. 856) authorizes the Terminal Company to acquire, by purchase or condemna- tion, 'the lands and property necessary for all and every the purposes contemplated' by the several acts of Congress under which the tunnel and railroad were constructed and are operated. This grant of the power of condemnation is very broad, but it has not been acted upon by the company in the case of the present plaintiff. And since he is not wholly excluded from the use and enjoyment of his property, there has been no 'taking' of the land in the ordinary sense.

The courts of England, in a series of decisions, have dealt with the general subject now under consideration. Rex v. Pease, 4 Barn. & Ad. 30, 40, 1 Nev. & M. 690, 2 L. J. Mag. Cas. N. S. 26, 22 Eng. Rul. Cas. 71; Vaughan v. Taff Vale R. Co. 5 Hurlst. & N. 679, 29 L. J. Exch. N. S. 247, 6 Jur. N. S. 899, 2 L. T. N. S. 394, 8 Week. Rep. 549, 1 Eng. Rul. Cas. 296; Jones v. Festiniog R. Co. L. R. 3 Q. B. 733, 9 Best & S. 835, 37 L. J. Q. B. N. S. 214,...