Pennsylvania R. v. Marchant , 119 Pa. 541 ( 1888 )

Opinion,

Mr. Justice Paxson :

This ease is admittedly upon all fours with Penn. R. Co. v. Lippincott, argued and decided at the last term of the court in the Eastern District, 116 Pa. 472. If that decision is to stand, the present case will have to be reversed, as they are in direct conflict. It is only just to the learned judge below to say, that when this case was tried, the decision in Penn. R. Co. v. Lippincott had not been rendered, nor had it been argued here. Two of our number dissented in that case, and two of those who heard the present case did not hear the former. I was abroad at the time, and our brother Williams was not then a member of the court. In view of these facts and of the grave character of the question involved, we have listened to an elaborate argument involving the same question and have carefully reconsidered it. It has not had the effect, however, of producing any change in the views of the majority of the court. We adhere to the ruling in Penn. R. Co. v. Lippincott, as announced by our brother Gordon. ' The ground was so fully covered by his opinion that this judgment might well be reversed without a further discussion of the principles involved. I concur fully in the views already expressed, and can hardly hope to throw additional light upon the matter, or to strengthen the argument already made. In view of the fact, however, that we listened to what was practically a re-argument, I will add a few words by way of supplement to the previous opinion of our brother Gordon, even at the risk of some repetition.

The plaintiff below is the owner of property on the north side of Filbert street, and brought his action to recover damages for an alleged injury to said property caused by. the operation of the defendant’s elevated road. The latter is constructed upon land owned by the company, and the entire width of Filbert street intervenes between the railroad and plaintiff’s house. He complains of the noise, the dust, smoke, and cinders, and the constant jar caused by the passing trains. He says these causes combined interfere with the enjoyment of his property and lessen its market value. For the purposes of this cause, we must consider his allegations established by the verdict of the jury.

The plaintiff claims to recover by virtue of the constitution of 1874, section 8 of article XYI. of which, provides, that “Municipal and other corporations and individuals invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured, or destroyed by the construction or enlargement of their works, highways, or improvements, which compensation shall be paid or secured before such taking, injury, or destruction.”

It was held in Penn. R. Co. v. Lippincott that the effect of this clause of the constitution was to place corporations upon the same plane with individuals as regards liability for injuries to property, and that it only made a corporation liable where an individual was liable at common law. The correctness of this ruling was conceded by the learned counsel for the plaintiff. '' He says at page 18 of his printed brief: “We ask for no other or greater liability to be imposed .upon this railroad company than would be imposed upon an individual in like circumstances.” As, however, other counsel in other cases may not concede so much, I will add a few words to this branch of the case.

If we resort to the familiar rule of interpreting statutes, the old law, the mischief and the remedy, we have no difficulty in arriving at the true construction of the language cited from the constitution. Prior to 1874, the citizen whose property was injured by a corporation in the construction of its works had no remedy therefor unless some portion of his property was actually taken. This was an immunity enjoyed by corporations and not by individuals. Cases of great hardship soon arose. O’Connor v. Pittsburgh, 18 Pa. 187, was one of these. In that case the city by the change of the grade of a street practically ruined a valuable church property; yet there was no remedy. This court of its own motion ordered a re-argument of that case, “ in order to discover if possible,” in the almost pathetic language of Chief Justice Gibson, “ some way to relieve the plaintiff, consistently with law, but I grieve to say we have discovered none.” Instances of a like nature might be cited indefinitely. I have selected this one as an illustration of the principle, and as perhaps one of the. most striking. In all of them, however, there was an injury to the property of the plaintiff in consequence of the erection or construction of the works of the corporation, as by the change of grade in O’Connor v. Pittsburgh, and the interference with water rights, as in Monongahela Nav. Co. v. Coons, 6 W. & S. 101. In all these cases the property had been seriously injured, and yet no portion of it taken by the offending corporation.

This was the mischief which the constitutional convention had before it when section 8 of article XVI. was adopted by that body, and it was the evil the people were smarting under when they ratified the work of the convention at the polls. The constitution, since 1790, had declared that the property of the citizen should not be taken or applied to public use without just compensation. The constitution of 1874 went further, and declared not only that it shall not be taken but also that it shall not be injured or destroyed by corporations in the construction or enlargement of their works, without making compensation, etc. etc. There is no ambiguity in this language. We have applied it several times to cases arising under it without the least difficulty. We are now asked to apply it, not to injuries to the plaintiff’s property, arising from the construction of the defendant’s road, but to injuries resulting from the lawful operation of their road without negligence.

Before I proceed to discuss this branch of the case, in order that we may know exactly where we stand, I will refer briefly to the cases we have decided under this clause of the constitution of 1874.

The City of Reading v. Althouse, 98 Pa. 400, was a- case where certain springs or streams of water had been diverted from their usual course to supply the city with water. By the act of April 14, 1853, applying to the Reading Water Company, it was provided that where the corporation permanently appropriated to its use such springs or streams as it might select for water purposes, compensation should be made to the owners for damages sustained. In an action against the city by a riparian owner whose stream had been diverted, we held, not only that the action could be sustained under the above act of 1853, but also that it could be maintained under section 8 of article XVI. of the constitution. In referring to this section it was said by Mr. Justice Gordon: “That section provides for the making of compensation, not only for the taking of private property for public use, as was tbe case theretofore, but also for its injury or destruction. That the use which the plaintiff made of the waters of the Great, or Antietam creek, through the race or ditch in controversy, was property, though of an incorporeal kind, is not open to debate, and that it was injured by the operations of the city of Reading, is a fact established by the proper tribunal. There is, therefore, no good reason, apparent to us, why the case should not be covered by the above recited eighth section of the constitution.”

In the Borough of New Brighton v. United Presbyterian Church, 96 Pa. 331, we had a case before us like O’Connor v. Pittsburgh, and differing only in degree. The borough had changed the grade of a street from two feet and a half in some places to fifteen feet in others, and we held that a property owner injured thereby had a right to damages for said injury under the constitution of 1874, although no such right existed before.

Philadelphia and Reading Railroad Co. v. Patent, 17 W. N. 198, was a case in which the said company, as the lessee of another railroad company, changed the alignment of the tracks of said leased railroad in a certain street in the borough of Manayunk, thereby obstructing the access to a private house fronting thereon, and causing other consequential injury thereto. In an action on the case against the company to recover damages for such injuries, it was held that while the plaintiff was entitled to recover upon other grounds, the case came nevertheless within the constitution of 1874.

In Penn. R. Co. v. Duncan, 111 Pa. 352, the plaintiff was allowed to recover in an action on the case for damages to his property caused by the construction of defendant’s road. The road was so near his property as to deprive him of the use of Filbert street as a highway, and of 400 feet of building front on said street. It is true Justice Green and myself dissented in that case, but it was upon the single ground that the company had paid $7,000,000 to the state for its property and franchises ; had succeeded to all the rights of the state, including the right to construct its road without liability for consequential injuries, and we were unable to see how the state could avoid its contract by amending its constitution. But we were all of opinion that but for this single reason, the case came clearly within the constitution of 1874.

County of Chester v. Brower, 117 Pa. 647, decided at the present term, was a case where the county had erected a bridge over French Creek in the borough of Phcenixville, and in the construction of the abutments or approaches to the bridge had built a wing wall nine feet six inches in height, immediately in front of plaintiff’s houses and only seven feet distant therefrom, thereby seriously interfering with his access thereto, and his reasonable use and enjoyment of the same. We held, affirming the court below, that the plaintiff was entitled to recover damages for this injury in an action on the case. This was following directly in the line of the Penn. R. Co. v. Duncan. It will be observed that they are all cases where the injury arose from the construction of the road. In no one of them was there a claim for what are popularly called consequential damages, arising from the operation of the road after its completion.

It will be noticed that all our cases decided prior to the constitution of 1874, in which compensation was denied for what are called consequential injuries, were instances in which the injuries were the result of the construction of the road; while all our cases decided since 1874, and which came under the section thereof referred to, likewise involved only injuries resulting from construction. The only exception is the case of Penn. R. Co. v. Lippincott, before referred to, and two or three other cases resting upon the same principle, and which were argued and decided with it, and in each of which the right to recover was denied.

The question whether under the constitution of 1874 a corporation is responsible not only for property taken, injured, or destroyed in the construction or enlargement of its works, but also for injuries or inconveniences the result merely of the operation of its works, is a question of such supreme importance, and of consequences so far-reaching, that we approach its discussion with caution. If it is the mandate of the constitution it must be obeyed. It is our duty to give effect to the will of the people lawfully expressed, and we shall perform it though it stops every wheel in the commonwealth. But it is no part of our duty to write into the constitution something which the people have not placed there.

Just here, it is proper to say, there is not a word about “ consequential ” injuries in the constitution. The word itself has acquired a broad, popular meaning by which many persons may be misled. In judicial proceedings it should be used intelligently and with due regard to its proper meaning. In its application to the constitution we understand it to mean an injury to a man’s property, the natural and necessary result of the construction or enlargement of its works by a corporation; an injury of such certain character that the damages therefor can be estimated and paid or secured in advance as provided in the constitution. And attention is again called to the cases which I have cited, and in which the constitutional provision has been invoked, and in all of which there has been an actual, • positive, visible injury, the necessary result of the original construction.

■ In considering a new question it is sometimes useful to carry it out to its logical conclusion and see where it leads us to. It is true the argumentum ab inconvenienti is entitled to but little force in the face of a plain mandate of the constitution. But it is a persuasive argument in construing language which is capable of more than one interpretation, and especially is it so, when we are asked to amend the constitution by a judicial decree.

If we hold that property owners on' Filbert street are entitled under the constitution to recover for the injuries complained of in this case; in other words, that it embraces injuries the sole result of the lawful operation of the defendant’s road, where are we to stop in its application ? Where is the line to be drawn ? If property owners on Filbert street may recover, why not those on Arch street, and Race, and so on north and south, east and west, as far as the whistle of the locomotive can be heard, and its smoke can be carried ? The injury is the same, it differs only in degree. And it does not stop here. The constitution does not apply to railroads merely. It affects all corporations clothed with the power of eminent domain, including cities, boroughs, counties, and townships ; it is applicable to canals, turnpikes, and other country roads. If, by judicial construction, we extend the constitution to all the possibilities resulting from the lawful operation of a public work; to all kinds of speculative and uncertain consequential injures, we shall find ourselves at sea, without chart or compass to guide us. Were we to adopt such a construction we would be compelled, to use the language of Chief Justice Shaw, in Proprietors of Locks and Canals v. Nashua & Lowell Railroad Company, 10 Cush. 385, to extend it “ to turnpikes and canals, the value of which is diminished or destroyed by loss of custom, to taverns and public houses deserted or left in obscurity; to stage-coach proprietors and companies, to owners of dwelling houses, manufactories, wharves, and all other real estate in towns and villages, from which the line of travel has been diverted. If it can extend to the next estate beyond the one crossed or touched by the railroad, why not to the next, and the next, which may be affected less in degree, but in the same manner ? ”

- It is very plain to our view that the constitutional provision was only intended to apply to such injuries as are capable of being ascertained at the time the works are being constructed or enlarged, for the reason among others, that it requires payment to be made therefor, or security to be given, in advance. This is only possible where the injury is the result of the construction or enlargement. For how can injuries which flow only from the future operation of the road, which may never happen, be ascertained in advance, and compensation made therefor ?

- It remains to say that if the construction of the constitution contended for be correct, then we have a liability imposed upon corporations in the operation of their works which is not now, and never has been, imposed upon individuals. No principle of law is better settled than that a man has the right to the lawful use and enjoyment of his own property, and that if in the enjoyment of such right, -without negligence or malice, an inconvenience or loss occurs to his neighbor, it is damnum absque injuria. This must be so, or every man would be at the mercy of his neighbor in the use and enjoyment of his own. In the late case of the Pennsylvania Coal Company v. Sanderson, 113 Pa. 126, it was said by our brother Clark : “ Every man has the right to the natural use and enjoyment of his own property, and if, whilst lawfully in such use and enjoyment, without negligence or malice on his part, an unavoidable loss occurs to his neighbor, it is damnum absque injuria, for the rightful use of one’s land may cause damage to another without any legal wrong.” No man is answerable in damages for the reasonable exercise of a right, where it is accompanied by a cautious regard for the rights of others; where there is no just ground for the charge of negligence or unskilfulness, and when the act is not done maliciously: Panton v. Holland, 17 Johns. 99. We need not consume time by the further citation of authorities for so plain a proposition. It is settled law.

It was not contended that the injuries of which the plaintiff complains, are in any degree the result of the negligent or unskilful operation of defendant’s road. On the contrary, they have expended many millions to enable them to handle their business, and convey their passengers and freight into the heart of the city, with the least possible annoyance to persons and injury to property. As was well observed by our brother Gordon, in the Penn. R. Co. v. Lippincott, the company might have hauled their enormous freight in carts or drays along Filbert street to its present terminus, and no one would have had a legal cause of complaint, though it is easy to see that the condition of property owners on that street would have, been far more intolerable in such case than it is at present.

This brings us to the question whether in case a natural person were the owner of this road, and were operating it in the manner that the defendant company are now doing, he would be responsible to the plaintiff in damages. We answer this question in the negative. He would not be responsible, for the reason above given, viz., that he would have a right to the reasonable use and enjoyment of his property, and if, in such use without negligence or malice, a loss unavoidably falls upon his neighbor, he is not liable in damages therefor.

It is true this principle is qualified to a certain extent. A man may not carry on a business which poisons the air, and renders it unhealthy in a thickly populated neighborhood, and especially in the centre of a large city. For establishments which involve danger, such as powder-mills; injuries to health, such as lead-works, and manufactories of various kinds, which involve noise and disturbance to neighbors, a man must seek a secluded place, where as few persons may be inconvenienced as possible. These exceptions to the general rule are well established, and need not be further dwelt upon. But they have no application to the case in hand. The necessities of a railroad company and the character of its business compel it to seek the heart of a great city. This is as much for the convenience of the public as for its own. Hence the transportation of passengers and freight'as near to the centre of a town as possible, is in the direct line of its duty, whether that duty be performed by a corporation or individual. It is a part of the lawful use and enjoyment of property, and, where it is done without negligence, entails no legal liability therefor.

The proper use of such a work as this is a matter of great public concern. That it may also put money into the treasury of a corporation is aside from the question. The fact remains that it is a great public benefit, essential not only to the success of the business interests of the city, but to other cities and other places as well. It is a metallic nerve which thrills and vibrates from one end of this vast country to the other. There are some inconveniences which, as was decided in Pennsylvania Coal Company v. Sanderson, must be endured by individuals for the general good; otherwise, we would have an Utopia, where the whistle of the locomotive, the hum of the spindle, and the ring of the hammer are never heard. It might be pleasant to dwell where there is nothing to offjend the eye, the ear, or any of the senses, but in this age of rapid development in every branch of industry, it would be difficult to find such a spot in the vicinity of our large cities.

We understand the word “ injury ” (or injured), as used in the constitution, to mean such a legal wrong as would be the subject of an action for damages at common law. For such injuries, both corporations and individuals now stand upon the same plane of responsibility.

That I am correct in the meaning we attach to the word “ injured,” appears abundantly by our own authorities. This was clearly shown by our brother Gordon in Penn. R. Co. v. Lippincott. In addition to the authorities there cited by him, I will add Lehigh Bridge Co. v. Lehigh Coal and Nav. Co., 4 R. 23; Pittsburgh and Lake Erie R. Co. v. Jones, 111 Pa. 204.

It is not necessary for us to look outside of our own state for authorities in construing our own constitution. It may not be out of place, however, to say that in England, where they have statutes containing provisions bearing a close analogy to our constitution, and which give damages to persons.whose property, though not taken, is yet “ injuriously affected by the construction ” of public works, such damages are not extended to injuries resulting from the operation of the road. It was said by Lord Westbuby in Rickett v. Railway Company, L. R. 2 Eng. and Irish Appeals, 198: “I agree with the distinction that has been taken between damage resulting from the railway when complete, or from the act of making it, and damage occasioned by the proper (not negligent) use of the railway when made. No claim can be made for loss resulting from the use of a railway. . . . Compensation is given by the statute only to individuals who in respect of the ownership or occupancy of lands or tenements sustain loss in or through the construction of the railway, or the execution of the incidental works.” To the same point are Hammersmith and City Railway Company v. Brand, L. R. 4 Eng. and Irish Appeals, 171; Caledonian Railway Company v. Walker, L. R. 7 Appeal Cases, 259; Penny v. Southeastern Railway Company, 7 E. & B. 660; Glasgow Union Railway Co. v. Hunter, L. R. 2 Scotch Ch. Div. Appeals, 78.

The language of the constitution is not equivocal and is entirely free from ambiguity. The framers of that instrument understood the meaning of words, and many of them were among the ablest lawyers in the state. Two of them occupy seats upon this bench. Hence, when they extended the protection of the constitution to persons whose property should be injured or destroyed by corporations in the construction or enlargement of their works, we must presume they meant just what they said; that- they intended to give a remedy merely for legal wrongs, and not for such injuries as were damnum absque injuria. Among the latter class of injuries are those which result from the use and enjoyment of a man’s own property in a lawful manner, without negligence and without malice. Such injuries have never been actionable since the foundation of the world.

Judgment reversed.