Alabama & Vicksburg Railway Co. v. King , 93 Miss. 379 ( 1908 )

Whitfield, C. J.,

delivered the opinion of the court.

This case is very largely controlled by the principles announced in the case of K. E. King v. Vicksburg Railway & Light Co., 88 Miss. 456, 42 South. 204, 6 L. R. A. (N. S.) 1036, 117 Am. St. Rep. 749. That case, among others, settled the proposition that “a corporation cannot claim exemption from liability for a nuisance maintained by it in the operation, of an electric railway power plant, whereby private property is damaged, because it is operating under a charter giving the right to do the business.” That proposition, and, indeed, the whole question involved in these two cases, is set forth with most masterly and profound ability in the exhaustive note to Louisville & Nashville Terminal Co. v. Lellyelt, Trustee, etc., 1 L. R. A. (N. S.) 49 et seq. It is said in that note, on page 50, that: “The correct doctrine is best stated in the opinion of the court in Blanc v. Murray, 36 La. Ann. 165, 51 Am. Rep. 9, as follows: ‘That which is authorized by the legislature, within the strict scope of its constitutional power, cannot be a public nuisance, but it may be a private nuisance; but the legislative grant is no protection against a private action for damages resulting therefrom.’ After approving this doctrine, the court further said: ‘The doctrine sometimes stated in the elementary works, and which has been held by some courts, that whatever is authorized by a legislature cannot be a nuisance of any kind is exploded.’ ” To this statement of the law is appended a citation of well-selected authorities, very numerous, and decisive of the proopsition stated.

The chief and almost sole contention in this case is that the charter of this railroad company, and various acts amendatory of it, authorized the construction of this railroad, and the taking of property under eminent' domain provisions, at a time when the constitutions, prior to the constitution of 1890, contained the word “taken,” but did not contain the words which the constitution of 1890 now contains, “or damaged;” that this railroad company exercised the right of eminent domain, and paid for all the property taken under the old constitutions; that this railroad was constructed with all proper care, and has been used since strictly in accordance with the law, all due skill and care in its use having been observed; and that consequently to .allow the appellee to recover as against the railroad, under its charter and statutes amendatory thereof, for damages to the property not taken, is a violation of the fourteenth amendment of the constitution of the United States, because that would be, as is alleged to allow the taking of property without due process of law. It is not contended by appellant that it would be a violation of the contract clause of the constitution of the United States.

Appellant recognizes the soundness of the decision in Pennsylvania Railroad Co. v. Miller, 132 U. S. 75, 10 Sup. Ct. 34, 33 L. Ed. 267 et seq., and concedes that to allow such damages to appellee is not to impair the obligation of any contract appellant had, and that proposition is undoubtedly settled by many authorities supporting it in the case cited. In the opinion in the Miller case the supreme court of the United States said: "“There was no such contract between the state and the defendant, prior to the constitution of 1873, as prevented the subjection of the defendant by that constitution to the liability for consequential damages arising from its construction of this elevated road in 1880 and 1881. Prior to the constitution of 1873 and under the constitutional provisions existing in Pennsylvania before that time, the supreme court of that state had uniformly held that a corporation with such provisions in its charier as those contained in the charter of the defendant was liable, in exercising the right of eminent domain, to compensate only for property actually taken, and not for a depreciation of -adjacent property. The eighth section of article 16, ;of the constitution of 1874 was adopted in view of those decisions, and for the purpose of remedying the injury to individual citizens caused by the nonliability of corporations for such consequential damages. Although it may have been the law in respect to the defendant, prior to the constitution of 1873, that under its charter, and the statutes in regard to it, it was not liable for such consequential damages, yet there was no- contract in that charter, or in any statute in regard to the defendant prior to the constitution of 1873, that it should always be exempt from such, liability, or that the state, by a new constitutional provision, or the legislature, should not have power to impose such liability upon it, in cases which should arise after the exercise of such power. Rut the defendant took its original charter subject to-the general law of the state, and to such changes as might be-made in such general law, and subject to future constitutional provisions or future general legislation, since there was no prior-contract with the defendant exempting it from liability to such future general legislation in respect of the subject-matter involved. This principle is well set forth in the opinion of the-justices of the supreme judicial court of Massachusetts, given by them in answer to a question submitted to- them by the senate of that commonwealth, in Re Provident Institution for Savings, 9 Cush. 604. * * * The provision contained in the-constitution of 1873 was merely a restraint upon the future exercise by the defendant of the right of eminent domain imparted to it by the state-. Ry its terms it imposes a restraint only upon corporations 'and individuals invested with the privilege of taking private property for public use, and extends the right to compensation, previously existing, for property taken, to- compensation for property injured or destroyed by the construction or enlargement of works, highways, or improvements made -or constructed by such corporations or individuals. Such provision is eminently just, and is intended for the protection of the citizen, the value of whose property may be as effectually destroyed as if it were in fact taken and occupied. The imposition of such liability is ,of the same purport as the imposition of a liability for damages for injuries causing death, which result from negligence, upon corporations which had not been previously subjected by their charters to such liability. * * * Nor will the exemption, claimed from future general legislation, either by a constitutional provision or by an act of the legislature, be admitted to exist, unless it is expressly given, or unless it follows by an implication equally clear with express words. In the present case the statutory provisions existing prior to the constitution of 1813, in favor of the defendant, cannot be properly interpreted so as to hold that the state parted with its prerogative of imposing the liability in question, in regard to future transactions,” etc., citing many authorities.

In the opinion of the justices of the supreme judicial court of Massachusetts, to be found in the supplement to 9 Cush., at page 604 et seq., the doctrine is very clearly stated, the court, there saying: “No special power or privilege being given in the charter, as to the mode of conducting its business, the corporation managed all its affairs according to the general laws. It took its charter subject to the general laws, and of course, subject to such changes as might be rightfully made in such laws. The legislature, surely, did not guarantee to the corpora' tion that there should be no change in the laws, that the whole system of legislation should remain as it was in 1816. There were at that time no general laws in regard to savings banks, as there were no savings banks. But after these institutions were established, and had become numerous and important, it was within the appropriate power of the legislature to make such general laws for their regulation as the public good might require, and there was nothing in the charter of the institution at Boston to exempt it from the operation of these general laws, and it must, of course, be subject to them in common with all the other similar institutions. The legislature, by giving to. the institution in Boston the privilege of being a corporation and of managing its proper business, did not relinquish any power of legislating on all proper subjects of legislation. The institution, at the time it was incorporated, had the right .and power, under the general laws, to loan money at six per cent, interest; but there can be no doubt that the legislature could alter the law, so that the institution could take only four or five per cent.- interest. The corporation had power under its charter to hold and dispose of property; but there was nothing in the charter as to the mode, and of course, the property could be held and disposed of only according to the general laws which the legislature might at any time alter, and the corporation would be bound by the alteration. The corporation might indorse and negotiate promissory notes, hut only according to the general laws, as there was nothing in the charter on the subject; but the legislature might change the whole law on this subject at any time, or take away altogether by general laws the right to indorse and negotiate notes, and these laws would be binding on the corporation. But it cannot be necessary to extend these illustrations. The legislature cannot be deprived of the power it holds for the public good by any doubtful construction or remote inference:” See, also, Cooley’s Constitutional Limitations (7th Ed.) p. 810 et seq.

In the note to Gainesville, etc., R. Co. v. Hall, 9 L. R. A. 299, it is said: “The words ‘injured or destroyed’ in Const. Pa. 1874, art. 16, § 8, were not designed to change, alter, or limit the nature and effect of corporate, contracts, but to impose on those having the right of eminent domain a liability for com-sequential damages. Edmundson v. Pittsburg, M. & Y. R. Co., 111 Pa. 316, 2 Atl. 404.” And-see, also, the opinion in the case to which this note is appended. In the note above referred to, in Louisville, etc., Lellyett, 1 L. R. A. (N. S.), at page 60, it is said: “The question as to the effect of a legislative charter has arisen most frequently in cases of railroads, and therefore, to get the problem well in mind, the situation with respect to them will be examined. An individual may run a railroad on his own property without being liable for a nuisance to his neighbors, so long as, under all circumstances, it constitutes a reasonable use of the property and comes within the maxim, ‘Sic utere tuo ut alienum non laidas.’ If, however, the enterprise is too large for him to handle alone, and he decides to organize a corporation for that purpose, it is necessary for him to receive the sanction of the state by means of a charter, in order to secure the advantages which incorporation confers. .But so far as the running of tire railroad is concerned he is in precisely the same situation that he was in before. He now has authority to become an artificial being, and that being has authority to run a railroad; but he must still do it with full regard to the rights of other property holders. If, in addition, he desires to extend his road onto another’s property or along a public street, he can secure the right of eminent domain by undertaking to become a public servant; but the authority so given him does not change his relations to his fellow citizens, except so far as he can compel them to surrender their property to him for due compensation, and to submit to whatever nuisance be chooses to create, also for due compensation. In other words, his charter and right of eminent domain have merely guaranteed the right to prosecute the enterprise, but have not relieved him of the duties as to making compensation which would rest upon him in their absence. * * * The charter authority prevents the enterprise from being a public nuisance, but has no bearing on the question of presence or absence of nuisance which is strictly private.”

In Baltimore, etc., R. Co. v. Fifth Baptist Church, 108 U. S. 317, 2 Sup. Ct. 719, 27 L. Ed. 739, this principle that the railroad company in such case, acting under its charter, and using its road with all due skill and care, may not be liable for a public nuisance, but is liable for a private nuisance, damaging private property, is stated with very great ability by Mr. Justice Eield; and, while it is true that in that case the church had owned its premises for ten years before the passage of the act and before the railroad company constructed its road adjoining the church premises, this fact in no way affects the application, generally, of the principle announced. That court, amongst other things, said: “The legislative authorization exempts only from liability to suits, civil or criminal, at the instance of the state. It does not affect any claim of a private citizen for damages for any special inconvenience and discomfort not experienced by the public at large.”

In the case of Georgia R. Co. v. Maddox, 116 Ga. 64, 42 S. E. 315, was announced the further very correct opinion that the fact that the railroad was constructed before the private citizen built his house in no wise interferes with the private citizen’s right to recover damages, due to a private nuisance, caused by a railroad company. The court said, further: “The contention of the plaintiffs that this terminal yard of stations and side tracks was a nuisance because dwellings were erected there-before the construction of the yard, and that it could have been located at another point, where there were no residences, without being a nuisance to any one, is without modern legal precedent to sustain it, and is unsound for at least two reasons: That in the first place the terminal yard was located at the terminus of one railroad, on an existing right of way of another railroad, and under statutory power. In the second place it is obvious that, if a terminal yard is a nuisance because located near dwellings, it would clearly be a nuisance wherever it might be put, even in the woods or fields, as soon as the owners of adjacent lands build houses on their land; for the old rule, maintained by some authorities, that coming to a nuisance will prevent a person so coming from making complaint, has long since-been exploded. Georgia R. & Bkg. Co. v. Maddox, 116 Ga. 64, 42 S. E. 315.” This announcement that the old rule, maintained by some authorities, that coming to a nuisance will prevent a person so coming from making any complaint, has long-since been exploded, is a most wholesome announcement, to which we heartily subscribe. See, also, King v. Morris, etc., R. Co., 18 N. J. Eq. 397. It is also announced, in the note referred to in 1 L. R. A. (N.S.), at page 84, that “the principle-so often invoked by railroad companies and other corporations, in this class of cases, that what the legislature authorizes can never be unlawful, means always only that that principle is limited to the lawful authorization by the legislature, and the legislature has no power to destroy private property by authorizing the erection of a private nuisance in its vicinity.” The legislature cannot now, any more than the king could in the past, shelter under the absurd pretense that “the king and the legislature can do no wrong.”

In 5 Barb. (N. Y.) 79, in the case of First Baptist Church of Schenectady v. Schenectady & Troy R. Co., the court said: “On this subject the court said that the defendant was indeed authorized to make the railroad, and to acquire the land necessary for that purpose; that it was also authorized to use the road for the transportation of passengers and freight, but that in the exercise of this authority it was only to be exempt from liability for injuries to others to the same extent as if the railroad had been constructed and used by individuals owning the land, without legislative sanction; that if, either in the construction or use of the road, it committed an act for which an individual, under the same circumstances, would be liable, it, too, must be held answerable for the consequences; that every corporation takes its powers subject to this implied restriction, and any other doctrine would lead to unimaginable mischiefs; and that where, as in this country, corporations are so multiplied and so extensively engaged in the various departments of business, to hold that they may, with impunity, do any act for which an individual would be amenable to justice, would result in the most pernicious consequences.”

The argument ah inconveniente, made so often in cases of this kind by railroad companies or other corporations, that if it should be held responsible for damages flowing from a private nuisance, created by it, to one owner, it would be so responsible to every other owner, and consequently would be ruined, is very neatly disposed of by the author of the note above in the following language: “The futility of the reasoning to the effect that the plaintiff should not have his action because every landowner on each side of the track would be entitled to his action, and the litigants would be numbered by thousands, and that it was questionable whether the running of railroads would be practicable if subjected to such a responsibility, is plainly apparent. As is-stated elsewhere, the experience in New York City, in what are known as the Elevated Railroad cases, is a perfect answer to any such chop logic as this. The effect of the decisions in thosocases was to compel the elevated roads to pay to each and every owner of property on the streets on which the roads were, located, in a thickly settled city, the metropolis of the western hemisphere, for a distance of miles in extent, compensation for the damage to his property by the construction and operation of the road. Notwithstanding all which the roads are still running, and have increased in number, and all are paying extensive, profits to their stockholders.”

The last case which we propose to cite as establishing this proposition, and which states it with the very greatest clearness, is the case of Blanc v. Murray, 36 La. Ann. 165, 51 Am. Rep. 9, in which that court held that that which was authorized by the legislature, within the scope of its constitutional power, could not be a public nuisance, but that it may be a private nuisance, and that the legislative grant was no protection against a private action for damages- resulting therefrom, and that the doctrine sometimes stated in the elementary works, and which had been held by some courts, that whatever was authorized by the legislature could not be a nuisance of any kind, was an exploded doctrine. Indeed, we held, through Campbell, Special Judge, in the case of this same party in 88 Miss. 456, 42 South. 204, 6 L. R. A. (N. S.) 1036, 117 Am. St. Rep. 749, above referred to, that if the legislature were to attempt to pass a statute exempting the railroad, or other corporations, from liability for damages for a private nuisance created by such act would be unconstitutional.

We think it must be settled beyond any controversy by the-so authorities that, whatever exemption the railroad company had under its charter and statutes amendatory thereof from liability for any public nuisance, it certainly was liable to this plaintiff for the damages causpd her by this private nuisance. In fact, the property of the plaintiff was practically destroyed. There was, as was well said in the opinion in 88 Miss. 456, 42 South. 204, 6 L. R. A. (N. S.) 1036, 117 Am. St. Rep. 749, a physical invasion and destruction of her property, so that it coitld no longer be lised as her home. As once before remarked in this opinion, the appellant, abandoning any claim that allowed the plaintiff to recover damages caused by this private nuisance would impair any contract obligation it had, only insists here that to allow the plaintiff so to recover would be to take its property without due process of law. But it must be tod obvious for further comment that, since an action for damages caused by this private nuisance is a right inherent in the plaintiff, in such cases, under the maxim "Sic uiere tuo ut alienum non Icedasffi there could not possibly, in any legal or logical sense, be said to be any deprivation of property without due process of law in doing what the law itself authorizes.

There is no merit in any other contention of the appellant.

The judgment is affirmed.