King v. Vicksburg Railway & Light Co. , 88 Miss. 456 ( 1906 )

Campbell, Special J.,

delivered tbe opinion of tbe court.^*

Tbe appellant is the owner of a piece of land in Vicksburg, on the north side of Pine street, on which are five dwelling houses, one occupied by her and the others by tenants. The appellee owns and operates a plant on its land on the south side of that street for generating electrical power to furnish light for the city and its inhabitants and a street railway system, under a franchise granted by the city, with which it has a contract to furnish lights. Immediately south of the land of appellee are the tracks of the Alabama &• VicksburgRailway Company. The plant of the appellee consists of three engines and boilers and batteries, etc., and two smokestacks one hundred feet high. Its machinery is of the best kind, its employes skillful and careful, and its management above criticism. The appellant sued for depreciation in the value of her property, caused by noise, smoke, soot, cinders and vibration alleged to be caused by the plant of the appellee. She has a like suit against the Alabama & Vicksburg Railway Company. The evidence tends to show considerable depreciation in the value of the appellant’s property, manifesting itself in reduced rents and inability to sell, except at a low price, because of the manner in which the property is affected by the causes complained of, arising from the plant of the appellee and the operations of the Alabama & Vicksburg Railway. The appellee denied that it damaged the property of the plaintiff, claimed that whatever depreciation of her property had occurred was before the appellee acquired its property, and that it is exempt from liability for any damage, because it is operating under public authority conferring the right to do what it does. The court instructed the jury to find for the defendant, refusing all instructions asked by the plaintiff.

The evidence shows that the property of the plaintiff was damaged by physical invasion of deleterious agents produced by the plant of the defendant and the Alabama & Vicksburg Railway, and it should have been left to the jury to say from which and to what extent. Considered as if between two private owners of the two properties, without reference to the public franchise, the right of the plaintiff to recover damages to the extent that it may be shown that they proceed from a physical invasion of her property by hurtful agents proceeding from the plant of the defendant is clear. No owner of property may set in motion agencies Which physically invade the home of another without liability for the damage done. Surely no citation of authority for this proposition can be necessary. An elaborate discussion of the subject is contained in a note, under the first case in volume 1, L. R. A. (new series). Public authority may confer the right to operate a public work, and thus make it lawful, but cannot confer a right to take or damage private property without compensating the owner for its value as taken or damaged — that is, diminished in its market value as property — by some physical invasion of it or by affecting some right of the owner in relation to it. Were an act passed by the legislature for the exercise of the right of eminent domain declaring that no liability should arise for noise, smoke, soot, cinders, vibration, and the like, whatever their hurtful effect on the property of others might be, it ■would be void, because the elements or factors of damage to property depend upon facts, and are to be ascertained by evidence in judicial proceedings.

Constitution 1890, sec. 17, makes the right of the owner of private property superior to that of the public, reversing the former rule that the individual might be made to suffer loss for the public. lie may still be compelled to part with his property for public use, but only on full payment for it or any right in relation to it. Before the constitution of 1890 it was held that a municipality might cut down a street to the injury of abutting owners, without any liability to them (White v. Yazoo City, 27 Miss., 357), and a river might be turned away from a plantation fronting on it without compensating the owner (Homochitto River Com’rs v. Withers, 29 Miss., 21 [64 Am. Dec., 126] ), and damage could be done to the property from constructing a levee without any right of the owner to be indemnified (Richardson v. Board of Levee Com’rs, 68 Miss., 539 [9 South. Rep., 351]). This was because of the rule that the right of the public was superior to that of the individual. The decisions of this court since the constitution of 1890 give full effect to the just rule established by its seventeenth section, by maintaining the right of the owner to be fully compensated for any loss of value sustained from any physical injury to his property or disturbance of any right in relation to it, whereby its market value is diminished. Railway Co. v. Bloom, 71 Miss., 247 (15 South. Rep., 72) ; City of Vicksburg v. Herman, 72 Miss., 211 (16 South. Rep., 434) ; Richardson v. Board of Levee Com’rs, 77 Miss., 518 (26 South. Rep., 963); Rainey v. Hinds County, 78 Miss., 308 (28 South. Rep., 875) ; City of Laurel v. Rowell, 84 Miss., 435 (36 South. Rep., 543). Many decisions of the courts of other states, with constitutions like ours, are cited and discussed in Lewis’ Eminent Domain, secs. 230 — 236.

It is worthy of observation that the instruction prescribed to be given the jury in eminent domain proceedings is that “the defendant is entitled to due compensation, not only for the value of the property to be actually taken, . . . but also for damages, if any, which may result to him as a consequence of the taking.” Code 1892, § 1690; Code 1906, § 1865. It is true that the language of sec. 17 of the constitution was intended for formal condemnation proceedings, wherein it provides for compensation to be first made in a manner to be prescribed by law; but it is equally protective of the owner of private property, when no condemnation is had and his property is taken or damaged by public use. Due compensation is what ought to be made • — that is, what will make the owner whole pecuniarily for appropriating or injuring his property by any invasion of it cognizable by the senses, or by interference with some right in relation to property whereby its market value is lessened as the direct result of the public use.

We recognize as true that when peóple live in cities, they, in the language of counsel, “surrender some of those privileges so to them when the air is rendered fragrant and healthful by the exhalations of the pine, musical with the gurgling currents of running water, and cooled by the unobstructed breezes from summer seas,” but think they are entitled to enjoy their homes from damaging results from invasion by smoke, soot, cinders, etc., sufficient to depreciate their value as property, in addition to rendering their occupancy uncomfortable. This for the surrender of which counsel speaks. We are unwilling to give license to destroy or annoy those engaged in any public employment useful to society, and favor protecting them in all their rights; but it is equally important to enforce the mandate of the constitution and protect the owner of private property, which is the purpose of this decision.

If the damage.to the plaintiff’s property was not caused by the plant of the defendant since it acquired it, but before, and there has been no continuing cause of damage, whereby depreciation of value has- been maintained, there is no liability on it; but if damage was done during former ownership, and the cause is continued, whereby restoration of value has been prevented, the fact of the" former damage would not avail the defendant.

We decline to pass on the instructions asked by the plaintiff and refused, assuming that in another trial instructions framed in conformity to this opinion will be given. We would not be understood to intimate any opinion as to the effect of the evidence. We merely hold that it should have been submitted to the jury, with proper instructions by the court.

Reversed and remanded.

* Whitfield, Chief Justice, beingr akin to a party interested in the suit, recused himselí, and J. A. P. Campbell, Esq., a member of tne supreme court bar, was appointed and presided in his place.