Johnson v. Baltimore & Potomac Railroad , 4 App. D.C. 491 ( 1894 )

Mr. Justice Morris

delivered the opinion of the Court:

There are two conditions under which the appellee would be subject to legal liability at the suit of the appellant. First, if the appellee occupied the public thoroughfare and the public space adjacent to the appellant’s residence, without warrant of law, and special annoyance and discomfort resulted to the appellant from such occupation over and above the annoyance and discomfort resulting to the public in general, he is entitled to his remedy for the obstruction so far as the same has become a nuisance to him. Secondly, if the appellee occupies the public thoroughfare and the public space in question lawfully and with full warrant of authority so to do, but so conducts its operations that they become a nuisance specially injurious to the appellant, the latter is for that also entitled to his remedy. We concur with the court below in holding that, upon the assumption of the legality of the appellee’s occupation in the premises, there is no sufficient proof in this case of unreasonable conduct of its operations by the appellee such as to warrant the intervention of a court of equity by the extraordinary remedy of injunction. The shifting of cars complained of has now, it is understood, been abandoned. The annoyance from noise has practically ceased to be an annoyance in consequence of long usage. And the discomfort from dust, smoke, cinders, soot and disagreeable odors is so slight in comparison with the inconvenience that might result from the issue of a writ of injunction, besides being fully remediable at common law, that a court of equity should hesitate to enjoin it as a nuisance. Indeed, apart from the question of the unlawful occupation of the public thoroughfare and the public space and the nuisance necessarily resulting therefrom, we do not understand the appellant to insist greatly, if at all, upon the matter of unlawful conduct of its operations by the appellee. And certainly there is no such show of unlawful conduct as would justify the court to seek in this suit to restrain it by injunction.

We do not wish to be understood as intimating that a court of equity may not, in a proper case, restrain the commission or continuance of a nuisance. It is well settled law that it may and should do so when a proper case is presented for its intervention. And neither a private nor a public corporation, neither a railroad company under pretense of service to the public, nor a municipal government, nor any agent of government under guise of the public good, can be allowed to perpetrate that which is a nuisance to the individual specially affected by the act, and escape liability either in a court of equity or in a court of common law. There can be no question of the power of a court of equity to restrain the commission of injury in such cases. Mississippi, &c., RR. Co. v. Ward, 2 Black, 485 ; Balt. & Pot. RR. Co. v. Fifth Bap. Ch., 108 U. S. 317 ; 2 Story’s Eq. Jur., Secs. 924-928, and cases cited in notes. If the claim of the appellee in this case to occupy the public ground was in plain and palpable violation of the law, or if its conduct of its operations, lawful or unlawful, was such as to constitute a plain and palpable nuisance demanding urgent action to save the appellant from irremediable injury, a writ of injunction would be an eminently proper remedy, no matter how great the resulting inconvenience might be, either to the appellee or even to the public. A court of equity will not tolerate a nuisance merely because its summary abatement might be an inconvenience to some one else, or to the public in general — although it cannot in reason be admitted that that which is illegal and a nuisance to the individual can be regarded as beneficial to the public. 2 Story’s Eq. Jur., Sec. 925, and cases cited in notes.

But the mere existence of a nuisance does not; of itself ■justify the intervention of a court of equity. In all ordinary cases there is ample remedy in the courts of common law by way of damages, and no more in the case of a nuisance than in any other case will a court of equity grant relief unless cause is shown for the exercise of its peculiar jurisdiction. A case of urgency or of irremediable injury must be made out, or one for the avoidance of a multiplicity of suits; or the case must be brought under some other of the recognized heads of equity jurisprudence.

In the case of Irwin v. Dixion, 9 How. 10, the Supreme Court of the United States, with reference to the matter of obstructions or supposed nuisances on the highway, says that the remedy by injunction is not favored, and would not lie, “ unless the injury is not only greater to the complainant than to others, and of a character urgent and otherwise irremediable at law,but the right or title to raise the obstruction is not in controversy, or is first settled at law.” And it adds: “ When the right or title to the place in controversy, or to do the act complained of, is, as here, doubtful, and explicitly denied in the answer, no permanent or perpetual injunction will usually be granted until such trial at law is had, settling .the contested rights and interests of the parties.” And numerous cases are cited in support of the position.

In the case of Parker v. Winnipiseogee, &c., Co., 2 Black, 545, where a bill had been filed to abate an alleged nuisance occurring from the attempted diversion of a stream of water, the same court said: “This jurisdiction is applied only where the right is clearly established — where no adequate compensation can be made in damages, and where delay itself would be a wrong. 2 Swanst. 316. The case must be one of strong and imperious necessity, or the right must have been previously established at law. 6 Barb. 160; 7 Barb. 400 ; 4 B. & C. 8 ; 37 N. H. 254 ; 17 Me. 202. The right must be clear and its violation palpable. 6 Barb. 160. If the evidence be conflicting, and the injury doubtful, this extraordinary remedy will be withheld. 3 Paige, 210; 1 Cooper’s Sel. Cas. 333 ; 3 M. & K. 169 ; 5 Met. 8; 9 G. & J. 668 ; 3 J. C. 282 ; 2 Barb. Cli. 282; 1 Dev. Eq. 12.” And it added that even “ after the right has been established at law, a court of chancery will not, as of course, interpose by injunction. It will consider all the circumstances, the consequences of such action, and the real equity of the case. 4 R. I. 301; 8 Eng. L. & E. 217; 9 Eng. L. & E. 104; 18 Eng. Cond., Ch. 436.”

Mr. Justice Story, in his work on Equity Jurisprudence, already cited, thus lays down the doctrine: “ In regard to private nuisances, the interference of courts of equity by way of injunction is undoubtedly founded upon the ground of restraining irreparable mischief, or of suppressing oppressive and interminable litigation, or of preventing multiplicity of suits. It is not every case which will furnish a right of action against a party for a nuisance which will justify the interposition of courts of equity to redress the injury or to remove the annoyance. But there must be such an injury as, from its nature, is not susceptible of being adequately compensated by damages at law, or such as from its continuance or permanent mischief must occasion a constantly recurring grievance which cannot be otherwise prevented but by an injunction.” Sec. 925.

In view of these authorities, we are unable to find in the record any such showing by the complainant as would entitle him to the extraordinary remedy of injunction. Undoubtedly he has suffered annoyance from the operations of the railroad company, for which he should be compensated in damages. And if the railroad company has occupied the public space and the public thoroughfare without warrant of law, it has committed a nuisance which should be abated, but it is in the first instance a public nuisance to be abated by the public authorities. If the complainant has suffered special injury therefrom, and has, therefore, become entitled to his action for damages, he has neither alleged or proved a case of irreparable injury, or one for which the remedy by way of injunction should be interposed. His case certainly does not seem to be one of urgency when we consider that he waited for several years before he instituted his suit; and that after he instituted it he permitted it to slumber for upwards of a year before he attempted to take any testimony, and for nearly another year before there was any testimony taken for the defendant.

The question of the right of the railroad company to occupy Maryland avenue and the public space between Sixth and Ninth streets in the manner in which it is here shown to occupy it, is one that is open to grave doubt. It is a question that should be settled in some appropriate proceeding instituted for the purpose. But we do not think that we should settle it in the present suit for the reason, as we have intimated, that the complainant has not exhibited a case that would warrant us in undertaking to settle it here. We desire to be understood as expressing no opinion upon it.

From what we have said, it follows that, in our opinion, the court below was right in its decision dismissing the complainant’s bill; and upon the grounds here stated we affirm the decree, with costs.