Opinion
December, 1903.
Frank M. Hardenbrook, for the appellant.
Ira A. Place, for the respondents.
Although it was testified that there was a round house or power house in the yard which was used by the railroad companies, no claim was made that the use to which it was put was such as in and of itself to constitute a nuisance. Had it been shown that the round house as used was a nuisance, then the plaintiff would have brought himself within the doctrine of Cogswell v. N.Y., N.H. H.R.R. Co. ( 103 N.Y. 10).
It there appeared that the defendant had erected upon a lot adjoining the dwelling house owned by the plaintiff an engine house and coal bins for its road and used the same in operating it. The smoke, soot, cinders and coal dust caused by such use filled plaintiff's house, rendering the air offensive and unwholesome and the house untenantable. It was held that the engine house as used was a nuisance and that even though the defendant had legislative authority for running its trains, it had no legislative sanction to the committing of such a nuisance, and, therefore, an action was maintainable to recover damages and restrain the nuisance. So, too, in the case of Garvey v. Long Island R.R. Co. ( 159 N.Y. 323), which was an action brought to restrain the use of a turntable, it was held (head note) that "the general statutory power to construct and operate a steam surface railroad does not authorize such an unreasonable construction and use of a turntable in a terminal yard in the vicinity of an inhabited dwelling on adjoining private property as to seriously, continuously and permanently injure the adjoining premises and impair their enjoyment without compensation; and if a turntable is so used as to have that effect, such use constitutes a nuisance which may be enjoined." And in the late case of Sadlier v. City of New York (40 Misc Rep. 78), which was a suit to restrain a nuisance, it appeared that the New York and Brooklyn Bridge on the Brooklyn side was about eighty feet above the roof of the plaintiffs' building, which was about twenty feet away from the bridge, and that dirty water and slush accumulated on the wagon roadway of the bridge and ran off in considerable quantities and volume, and owing to the action of the wind, it was cast upon the roof of plaintiffs' building and against the side and windows thereof; and it was held that though there was legislative authority to build the bridge, it could not be suffered to be used in the manner claimed to plaintiffs' injury without their being entitled to damages therefor.
These cases are easily distinguishable in principle from cases like Uline v. N.Y.C. H.R.R.R. Co. ( 101 N.Y. 107), wherein it was held: "But wherever a railroad is lawfully built with proper care and skill, there it is not a nuisance. What the law sanctions and authorizes is not a nuisance although it may cause damages to individual rights and private property. If a railroad be built upon a highway, after acquiring the public right and the private property, if any, in the street or the soil thereof, then the owners thereof are not responsible for any damages necessarily resulting from the construction or operation of the railroad to private property adjacent or near to the road, and so too the law has been settled in this State by many decisions." In Flinn v. N.Y.C. H.R.R.R. Co. ( 142 N.Y. 11) also it was held that a railroad company is not liable for the unavoidable and usual consequences to adjacent property by the proper operation of its road.
Here the plaintiff neither alleged nor proved that the railroads were operated negligently or improperly; nor was it claimed that the injuries suffered were other than those caused by the regular operation of the roads; and the learned trial judge found as matter of fact, the case having been tried by him without a jury, that there was no injury from any other cause than from the lawful and orderly operation of the roads, and held that for such injury no compensation could be allowed under the principle of damnum absque injuria.
The legal question presented, therefore, is whether the case is controlled or governed by Garvey v. Long Island R.R. Co. ( supra) and like cases; or by the principle enunciated in Uline v. N.Y.C. H.R.R.R. Co. ( supra) and kindred cases. The learned trial judge concluded upon the evidence that the latter was controlling, and in this view we concur. The judgment, accordingly, should be affirmed, with costs.
VAN BRUNT, P.J., and LAUGHLIN, J., concurred; HATCH, J., dissented.
I am unable to concur in the conclusion reached by the majority of the court in this case. In principle, I think the facts shown upon the trial bring the case within the doctrine announced in Garvey v. Long Island R.R. Co. ( 159 N.Y. 323). The evidence fairly established that in the use which was made by the defendants of their yard a nuisance was created, from which the plaintiff suffered special injury, and that the legislative authority to maintain and operate a railroad does not justify, and did not in this case, the creation of such nuisance. The method by which the nuisance was created is not of consequence if it exist. It being shown that special injury was occasioned to the plaintiff therefrom, his right of action accrued and the authority to maintain and operate the railroad was not a defense to the action. The learned court below was, therefore, in error in dismissing plaintiff's complaint, for which reason the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.
Judgment affirmed, with costs.