Virginian Railway Co. v. London , 114 Va. 334 ( 1912 )

Keith, P.,

delivered the opinion of the court.

The defendant in error sued the Virginian Railway Company upon a plea of trespass on the case, and in her declaration avers that she was seized and possessed of a certain lot of land situated in the city of Roanoke, Va., on which she had erected a certain building, and was using the same as a residence for herself and her family; that the Virginian Railway Company owned a certain lot of land lying-adjacent to her property on which it erected a round house, which was used by it for the purpose of receiving, storing and delivering cars and locomotive supplies and material, and for keeping locomotives and engines, and in connection with said round house laid a number of short railroad tracks, which were used for the purpose of standing, storing and keeping such of its locomotives as were not in immediate use, and of cleaning, firing, steaming and repairing them; that it was the duty of the defendant so reasonably to use its said lot and the structures thereon as not to interfere with the possession, use and enjoyment by the plaintiff of her property; yet the defendant, not regarding its duty, has steadily and unceasingly continued, and is now continuing, to stand, store and keep in said round-house and on the tracks adjacent thereto a large number of locomotives, varying in number from time to time, and to clean, fire, steam and repair the same in the round-house and on the tracks adjacent thereto; that from the engines so placed, hostled, tended and handled there were daily and many, times during the day and night the ringing of bells, blowing of whistles, and prolonged and deafening- roar of steam and noise of blowers at work raising them, and vast clouds of smoke and ashes come from the smokestacks of said locomotives over, upon, into, through and about the plaintiff’s dwelling and premises; that the said smoke, cinders, soot, ashes and dust are blown into plaintiff’s dwelling house and taint and corrupt the air and atmosphere and render practically useless the dwelling house of the plaintiff for the purpose of habitation.

The case was twice tried. At the first trial the jury rendered a verdict for the defendant, which, iipon motion of the plaintiff, the court set aside, and at a subsequent trial the jury awarded the plaintiff $500, upon which verdict the court entered judgment, and the case is before us upon the petition of the railway company, which assigns as error, first, the. action of the court in setting aside the first verdict and granting a new trial, and, second, certain •rulings of the court made during the progress of the second trial.

We have no difficulty in saying that the court did not err in setting aside the first verdict. Whatever may be the difference of opinion as to the true measure of damages in such a case, it is certain that the plaintiff had sustained substantial damage, and that the jury erred in finding a verdict for the defendant.

The errors assigned by the plaintiff in error with respect to the second trial are as follows: First, that the court erred in overruling the demurrer to the amended declaration; second, that the court erred in refusing to give the instructions asked for by the plaintiff in error; and,.third, that the court erred in refusing to set aside the verdict of the jury rendered on the second trial of the case.

• Upon the demurrer the contention of the plaintiff in error is that inconsistent elements of damage are claimed in the declaration; that the declaration alleges that the plaintiff is damaged in the use and possession of her property, and is also damaged by the permanent depreciation of the market value of her property; and that these elements of damage are inconsistent, because the permanent depreciation in the market value of property comprehends the whole damage that can be caused to property by the establishment of a permanent nuisance. The same assignment of error is made in connection with the instructions asked for and which the court refused to give, and is the controlling question in the case.

Plaintiff in error relies upon Swift v. Newport News, 105 Va. 108, 52 S. E. 821, 3 L. R. A. (N. S.) 404, where it is stated that where private property has been damaged by a public improvement, but no part thereof has been taken, the measure of damages is the diminution in the value of the property by reason of the improvement — the difference between the fair market value of the property immediately before and after the construction of the public, improvement.

In that case the court was dealing with an injury to property only, caused by a change in the grade of a street, and as a matter of course, if the change in the grade added to the market value, no injury was sustained by the act complained of, but in the case before us another element enters, and is to be considered. There are nuisances in Avhich the harm attributed consists of damage to realty itself, and, secondly, those in which the damage consists of an interference with some right incident to the ownership or possession of realty. The case of Swift & Co. v. Newport News, supra, belongs to the first class, in which there must be substantial diminution in the value of the property, while the case before us belongs to the second class, where the injury consists of a substantial impairment of the plaintiff’s comfort and convenience and enjoyment of it. See I Street’s Foundation of Legal Liability, pp. 211-223, inclusive.

The author adopts the definition of a private nuisance given by Pollock as follows: “A private nuisance is the using, or authorizing the use of, one’s property, or of anything under one’s control, so as to injuriously affect an owner or occupier of property (1) by diminishing the value of that property; (2) by continuously interfering with his power of control or enjoyment of that property; (3) by causing material disturbance or annoyance to him in his use or occupation of that property.”

The contention of the plaintiff in error seems to be that damages for diminution .of the value of property include every element of damage which may be recovered, and that if a nuisance be a continuing nuisance — a permanent nuisance — (and it is conceded that the nuisance under consideration is a permanent nuisance) it excludes every other element of damage. In this view we cannot concur. The result of a nuisance may be to add to the value of the property, and yet involve a substantial impairment of the owner’s comfort, convenience and enjoyment of it by causing a material disturbance or annoyance to him in the use or occupation of that property. Any other conclusion would seem to involve the right to set off a benefit resulting from the nuisance against the injury which it occasions.

There can be no doubt, under the facts of this case, that the value of the house of the defendant in error was, for residential purposes, greatly impaired by the nuisance created by the plaintiff in error. That is a conceded wrong, and to deny her the right to recover damages on account of that wrong because the market value of her property had been increased by the wrong would be to say that she could be improved out of her home against her will by the wrongful act of the plaintiff in error, and the law would afford her no redress.

In Baltimore & Potomac R. Co. v. Fifth Baptist Church, 108 U. S. 317 27 L. Ed. 739, 2 Sup. Ct. 719, in dealing with the subject of damages for such an injury, Mr. Justice Field uses the following language: “Mere depreciation of the property was not the only element for consideration. That might, indeed, be entirely disregarded. The plaintiff was entitled to recover because of the inconvenience and discomfort caused to the congregation assembled, thus necessarily tending to destroy the nse of the building for the purposes for which it was erected and dedicated. The property might not be depreciated in its salable or market value, if the building had been entirely closed for those purposes, by the noise, smoke and odors of the defendant’s shops. It might then, perhaps, have brought in the market as great' a price to be used for some other purpose. But as the court below very properly said to the jury, the congregation had the same right to the comfortable enjoyment of its house for church purposes that a private gentleman has to the comfortable enjoyment of his own house, and it is the discomfort and annoyance in its use for those purposes which is the primary consideration in allowing damages.”

The principle established in that case is, we think, conclusive of the one under consideration.

We are of opinion that the demurrer to the declaration was properly overruled and that the court committed no error with respect to the instructions.

With respect to the instructions which were refused, it is proper to mention that the plaintiff in error asked the court to instruct the jury as follows: “The court instructs the jury that if they believe from the evidence that the alleged nuisance caused by the defendant damages the plaintiff’s property and is of a permanent character, the measure of the plaintiff’s damage to her said property is the depreciation of the market value of the property by reason of the existence of the nuisance;” which the court refused to give in that form, but expressed itself as willing to give with the following addendum, if the plaintiff in error desired it: “The jury are further instructed that the plaintiff is not entitled to recover, in addition to the damages above referred to, any damages on account of the discomfort and inconvenience caused by the alleged nuisance during the time she remained in the property and occupied it as a home; but if the damage to the property is less than the damage from being deprived of the quiet and comfort of her home she may, nevertheless, recover the damage from being so deprived of such quiet and comfort.” The effect of which would have been, of course, to prevent the recovery of what plaintiff in error claims would have been double damages — that is to say, damage to the use of the property on account of discomfort and inconvenience caused by the alleged nuisance as well as to its market value; but the plaintiff in error, with respect to that instruction, declined to offer instruction No. 6 with the amendment suggested by the court.

Upon the whole case we are of opinion that the judgment complained of should be affirmed.

Affirmed.