Opinion
05-05-1899
RIDGE v. PENNSYLVANIA R. CO.
John L. Semple, for complainant. Joseph Gaskill, for defendant.
Railroads—Nuisance.
Where a railroad acquires land for terminal purposes in the heart of a city, it cannot use such land in disregard of the comfort and property of others. It must adjust its operations so as to produce the least annoyance possible.
Bill by James M. Ridge against the Pennsylvania Railroad Company. Heard on bill, answer, and proofs. Decree for defendant.
The complainant owns a three-story brick house fronting on Mickle street in the city of Camden. A part of the first floor of this house is used as a drug store, and the room above, fronting on Mickle street is used by complainant as a physician's office. This house is 30 feet north from the southeast corner of Third and Mickle streets. One hundred feet north of Mickle street, and parallel with it is Bridge avenue. Along Bridge avenue are laid three tracks of the Pennsylvania Railroad, leading to its yard and station on the east side of the Delaware river. Mickle street is 60 feet wide, and is closely built upon both sides at this point. Second street is the next street to Third street, towards the river and yard of the Pennsylvania Railroad. Between Second street and the river, the yard and station lie. The bill charges that the right to use the tracks of the railroad for strictly yard purposes, namely, for making up trains, shifting cars, etc., is confined to the limits of the yard, lying between Second street and the river. The bill charges that for a long time past the company has unlawfully used the three tracks along Bridge avenue, north of Second street, for the purpose of distributing cars and making up trains, and using engines there for shifting and coupling, and detaching cars near the dwelling of the complainant; that at frequent intervals during every day and night the engines stop and keep standing near said house from 1 to 30 minutes, and discharge large volumes of smoke, soot, cinders, and gases, which are carried into the rooms of the said house; that cars loaded with cattle and manure are kept standing there; and that the noise of bumping cars, the shouting of men in drilling cars, the ringing of bells, blowing of whistles, hissing of steam, and the groaning of cattle are a nuisance. The bill states that at Third street, at its point of crossing, Bridge avenue is obstructed. An injunction is prayed for. The answer sets up that the company is in possession of the tract of land for terminal purposes, including a strip of land eastward of Second street, on the north side of Bridge avenue, to Fourth street. Fourth street crosses Mickle street, north of complainant's residence. The answer states that the defendant has purchased all the property fronting on Bridge avenue between Fourth street and the river, from No. 1 to No. 19 on the south side, and from No. 1 to No. 16, inclusive, on the north side, of Bridge avenue, by which purchases it acquired the fee in the soil covered by said avenue, lying west of Fourth street; that that part of Bridge avenue on a line 40 feet from the south house line was vacated; that the 60-foot strip thus vacated, upon which the three tracks are laid, together with the property purchased on the north side of Bridge avenue, were acquired for terminal purposes, and constitute the throat of the yard, and have been used in connection with this terminal. The answer denies the general allegation of the bill in respect to the standing of cattle and manure cars; and in respect to the emission of smoke, gas, and noises, it states that it is one of the incidents of defendant's business, and that it is the result of the necessary use of the property so acquired forthe purpose of drawing cars upon it, in order to clear the switches in front of the passenger station, or to run them upon the storage tracks, and to draw freight cars to place them upon their proper tracks to be made up into trains. It claims the right to so purchase and use the land under the charter of the Camden & Amboy Railway & Transportation Company.
John L. Semple, for complainant.
Joseph Gaskill, for defendant.
REED, V. C. (after stating the facts). In support of the complainant's case, the doctrine enunciated by the court of appeals in the case of Railroad Co. v. Angel, 41 N. J. Eq. 316, 7 Atl. 432, is vouched. The bill is admittedly modeled after the pleadings in that case. That was a suit brought against the same' corporation by a resident on the southerly side of Bridge avenue, between Second and Third streets, who complained that the company had created a nuisance by the use of its railroad in front of his house in a manner similar to that now charged by the present complainant. The court in that case held the defendant was guilty of maintaining a nuisance, on the ground that it had no right to use its tracks north of Second street for any purpose other than the passage of its trains, while in fact it had used them for terminal purposes. If the right of the railroad company to use the three tracks mentioned has not been enlarged since the decision of that case, the complainant is clearly entitled to an injunction; for it is not denied by the defendant that it has habitually used the same portions of its road for terminal purposes. The first question, then, is whether it has acquired any rights that it did not possess at the time of the former litigation. Then its tracks north of Second street were laid upon a street, and the court held that neither by legislation nor municipal grant had it acquired any right to use those tracks as a part of its terminal yard. Since then the company has acquired the fee in the land covered by these tracks, and 60 feet of the street has been vacated; leaving the fee in the company, disincumbered of the public easement. Upon this vacated strip the company has placed its three tracks, and this strip of land, together with the property north of it, the company has shown to be necessary for the operation of its terminal yard. The act of 1855 (Acts 1855, p. 118; Revision, p. 919, § 65), cited in the opinion in Railroad Co. v. Angel, supra, conferred upon the railroad company power to purchase and hold so much land as might be strictly necessary for most conveniently storing and working upon its engines, cars, fuel, and material to be used on its roads, to the best advantage, etc. I am of the opinion that the company now has the right to use the track between Second and Fourth streets in conjunction with its former yard. But I do not think that the company has the right to use the strip of land between Second and Fourth streets in the same way that it could use its former yard. The case of Beseman v. Railroad Co., 50 N. J. Law, 225, 13 Atl. 164, affirmed in 52 N. J. Law, 221, 20 Atl. 169, relied upon by the company, does not I think, go to this extent. That action was for damages to the owner of lands, occasioned by the railroad, which ran within 10 feet of the owner's property. He complained that his dwelling house was rendered unfit for habitation by reason of cars, loaded with animals, which the company permitted to stand upon the tracks near his house, and by the noise of whistles, etc. A plea was filed setting out the charter rights of the defendant to locate its yard, and, in the language of the opinion, set up "that by force of its franchise, derived from the public grant, it has built its road and run its trains, carrying merchandise and freight near to the land of complainant, doing to the complainant no more damage than that which necessarily results from the transaction of such acts and business." It is perceived that the plea in that case, as thus construed by the court, set up that the injury charged was a necessary incident in the operation of the defendant's road, under its charter. The court held that, as railroads possess a public character, therefore any injury which is the consequence of the necessary exercise of its chartered privileges is damnum absque injuria. In the opinion in the Beseman Case, the case of Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U. S. 328, 2 Sup. Ct. 719, was referred to. In the latter case it was denied by the supreme court of the United States that the railroad had been invested with the privilege of building an engine house or repair shop next to a church in the city of Washington. The court held that the grant of power did not authorize the company to place such structure wherever it might think proper in the city, without reference to the property or rights of others. The doctrine of that case was approved in the opinion of Beseman v. Railroad Co., supra, upon the ground that in selecting the place for repair shops the railroad company acted altogether in a private capacity. Such location, it was said, was a matter of indifference to the public, and consequently, with respect to such act, the corporation stood upon the footing of an individual, and was entitled to no superior immunities. What was meant was that while the public was concerned that a railroad company should have all the appliances, including repair shops, to make its public service effective, it was immaterial to the public where such appliances were placed, so long as the service was efficient All that concerns the public is to have an efficient service in the way of transportation of persons and freight. The company is shielded from responsibility for incidental damages resulting from acts which are necessary to bring about such service. In the federal decisionit was admitted that the company, by virtue of its franchise, had the right to build repair shops and engine houses, but, having the liberty to choose different sites for its structures, it was bound to select one where they would not inflict an injury upon the property of others; else, as Justice Field remarked, "it might have built them in front of the capitol." Therefore the right of this company to use the strip of land upon which the three tracks are placed, between Second and Fourth streets, for terminal purposes, does not include the right to use them for all purposes to which a terminal yard may be devoted. The company is bound to take into consideration the environments, and adjust its operations so as to produce the least annoyance to persons and property, in placing the instruments necessary to transact its business. The strip of land projects from the original yard into the heart of the city of Camden,—into a part of the city which was occupied for residential and business purposes long before the land was purchased by the company. The terminal yard, lying between Second street and the river, is free from these environments. In adjusting its terminal affairs, the company, I think, should regard these conditions, and adjust its business so that it will be the least likely to inflict injury upon others. This, indeed, it claims it has done. It has proved that the use of the tracks between Second and Fourth streets is necessary for drilling cars, in breaking up arriving trains, and forming departing trains, both passenger and freight. It has proved that it is often necessary to stop trains upon these tracks before entering the yard, to await signals that the tracks are clear. It denies that the tracks are used for any terminal purposes, aside from those mentioned. It insists that the drilling of cars has been necessary to the operation of the yard, and that no cars or engines have been permitted to stand upon these tracks between Second and Fourth streets, or across Third street, any longer than such service required. That the complainant has been annoyed by the noise of bumping cars and of engine whistles and bells, as well as by the smoke of locomotives,—particularly those atached to freight cars,—there is no doubt. The delicate operations of diagnosis were easily interrupted by noises which would not have disturbed persons otherwise engaged. The cleanliness which should attend a well-conducted pharmacy was made difficult by the soot, which, in certain conditions of the atmosphere and directions of the wind, would naturally be deposited by freight engines, even if merely passing. But those are the incidents of railroading for which no responsibility arises, if they are the necessary results of the operation of the road.
The question is resolved into the query whether the company habitually conducts its operation upon these tracks in such a way as to create unnecessary nuisances and dirt, which specially injured the complainant. There are a number of witnesses who testified to the extent of noise and smoke and gas in the vicinity of Bridge avenue, and obstructions at Second and Fourth streets, which entailed prolonged interruption of passage along said streets at Bridge avenue. The opinion of these witnesses is that this was the result of having engines or trains either standing upon the three tracks mentioned, or moving backward and forward in the drilling of cars. There are also a number of witnesses, who live or board in the vicinity of the complainant's house, who have found little or no disturbance or nuisance from the smoke, dirt, and noise. They say, also, that the delay of crossing Third street is rarely over two or three minutes, which delay may be caused by departing trains at certain hours following each other in quick succession. The force of the testimony on both sides must be discounted by the feelings of the witness,—those of the complainant, who are more or less annoyed even by the passage of a large number of trains which pass over the tracks during the 24 hours, and who feel aggrieved by the smoke and noise that such traffic engenders, although strictly incidental to the legitimate business of the company. On the other hand, many of the witnesses are in the service of the company, or related to some one in such service, and are disposed to overlook any discomfort from the source named. I have no doubt that there have been, on occasions, unnecessary smoke and dirt created by the engines standing upon these tracks. I believe Mr. Garrow when he says he has seen three and four engines standing there, the engineers of some of them poking their fires, which send up volumes of black smoke. It is proved that on some occasions the crossing at Third street was obstructed for periods of time, which periods, it is admitted by officers of the company, were unnecessary in the ordinary operation of the yard, and to be accounted for only by some accident. This obstruction in Third street is important only in exhibiting the manner in which the tracks are used. Dr. Bray says that he was, in September last, detained 10 minutes, by his watch, by a freight train lying across the street, and, when he asked an employe when they were going to let him through, he received the insolent reply, "that if he kept his watch out, and looked at it, he would find out." There are other witnesses who say that they were detained 10, 15, and 20 minutes, but the dates are not given; nor do they swear by their watch, as does Dr. Bray, but by the length of time as they now recall it. When a witness speaks of minutes, in recalling periods of time not actually measured by a timepiece, it is necessarily uncertain. The seeming length of the interval depends upon the mood of the witness at the time. The only witness who gives dates Is, I think, Mr. Garrow, who says that on September 16th and 17th there was an engine, with acar, which stood for 15 minutes on the tracks above Third street, sending out black smoke and exhaust steam; that on the 18th there was almost constant drilling, and volumes of smoke from standing and drilling engines. While I think that, on the occasions spoken of by Dr. Bray and Mr. Garrow, the company abused its right to use the tracks for terminal purposes in the modified manner which I have indicated, yet these particular instances do not, alone, prove such an habitual misuse by the defendant of its tracks as to establish the existence of a nuisance which this court will enjoin. The remaining testimony is deficient in dates, and is general as to times of track occupation, and therefore impossible of specific refutation. I have therefore concluded that there is not proven such a clear case of an habitual violation by the defendant of the rights of the complainant as will justify an injunction, even in the very general form in which such a writ would have to be drafted if allowed. I advise a decree dismissing the bill, but without costs.