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ity intended to erect a smallpox hos- they may execute and do within their pital on land owned by it and situated own district." The court, construing in a cemetery in the plaintiff's town- these sections of the Public Health ship limits. It was held that the mere Act of 1875, $$ 112, 131, and 285 reerection of the hospital did not, prima spectively, held that a smallpox hospifacie, show a nuisance which should tal was not a noxious business within be restrained, and that the plaintiffs the purview of and analogous to § 112; must show an actual nuisance.

that, the land upon which the proIn Withington Local Bd. of Health posed hospital was to be erected being v. Manchester (1893] 2 Ch. (Eng.) 19, owned by the defendant municipality, the action was brought by the board no prohibition against the building of of health of a township to restrain the the hospital could be spelled out of $ defendant municipality from erecting 131; and further, that, as the operaa smallpox hospital on land owned by tion of $ 285 is confined specifically to the municipality and situated within adjoining towns and municipalities, it the territory of the plaintiff township, did not apply to the present case. The which was not an adjoining township court did not go into the question of to the municipality. The plaintiff con- nuisance. tended that such action on the part of In Elizabethtown Twp. v. Brockville the defendant should be restrained, as (1885) 10 Ont. Rep. 372, it appeared being prohibited and made illegal by that the defendant, a township, estabthe following statutes: First, by the lished and maintained a hospital for Public Health Act 1875, § 112, which the treatment of smallpox in the plainreads, in part, as follows: "Any per- tiff's municipal limits, without having son who, after the passing of this act, the required permission of the townestablishes within the district of an ship, in which the municipality was urban authority, without their consent located. It was held that such an act in writing, any offensive trade; that was forbidden by the regulations is to say, the trade of blood boiler, or passed by the central board of health bone boiler, or fell monger, or soap of Quebec, which reads as follows: boiler, or tallow melter, or tripe boiler, “No smallpox patient shall be conor any other noxious or offensive trade, veyed from one municipality into anbusiness or manufacture, shall be li- other without the permission of the able to a penalty;" second, by $ 131 of local board of health of the municipalthe same act, which, in part, reads: ity to which the patient is being con“Any local authority may provide for veyed." the use of the inhabitants of their dis- In Summit Twp. v. Jackson (1908) trict hospitals or temporary places for 154 Mich. 37, 18 L.R.A.(N.S.) 260, 117 the reception of the sick, and for that N. W. 545, an action was brought to purpose may themselves build such restrain the city of Jackson from ushospitals or places of reception; or ing a hospital situated in the plaincontract for the use of any such hos- tiff's jurisdiction for the treatment of pital or part of a hospital or place of infectious diseases. The court held reception; or enter into any agreement that there was no authority of law with any person having the manage- given to either the municipality or the ment of any hospital, for the reception township to invade the territory of the of the sick inhabitants of their dis- other, and that the defendant could trict, on payment of such annual or not bring patients infected with danother sum as may be agreed on. Two gerous communicable diseases within or more local authorities may combine the township, without first obtaining in providing a common hospital;" permission therefor from its proper third, by $ 285 of the same act, to the officers. following effect: "Any local author- In State ex rel. Board of Health v. ity may, with the consent of the local Trenton (1906) — N. J. Eq. —, 63 Atl. authority of any adjoining district, ex- 897, the question having been raised ecute and do in such adjoining district as to the right of a city to maintain a all or any of such works and things as pesthouse in an adjoining township,

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the court held that the action having been brought in equity, seeking an injunction restraining the operation of the hospital on the ground that it was so conducted as to become a nuisance, and the plaintiffs having failed to establish the fact that the institution was a nuisance, the court could not restrain the erection and maintenance of the building simply because the city had exceeded its municipal powers; and that redress for that wrong must be sought in a legal action. b. By private corporation or individual.

A private corporation or individual has the right to maintain a hospital for the treatment and amelioration of contagious diseases, but in so doing is subject to the prohibitions and restrictions of statutes and city ordinances, and must exercise due care in the conduct of the institution, and locate it in districts where its presence will not create a nuisance. Milne v. Davidson (1827) 5 Mart. N. S. (La.) 409, 16 Am. Dec. 191; Gilford v. Babies' Hospital (1888) 21 Abb. N. C. (N. Y.) 159, 1 N. Y. Supp. 448; Mason v. Presbyterian Hospital (1900) 30 Pittsb. L. J. N. S. (Pa.) 359; Com. v. Charity Hospital (1901) 198 Pa. 270, 47 Atl. 980, affirming (1900) 31 Pittsb. L. J. N. S. 11.

In Gilford, v. Babies' Hospital (1888) 21 Abb. N. C. (N. Y.) 159, 1 N. Y. Supp. 448, an action by the owner of a contiguous dwelling to restrain the defendants from establishing and maintaining a hospital for infants, including any who, after admission, might contract contagious diseases, in a residential section of the city of New York, it was held that the hospital, while not a nuisance per se, became a nuisance by reason of its lo..ation and the danger it created toward the residents in the vicinity, the court saying: "To my mind the hospital is not a reasonable use of property, considering the locality and surroundings. The care of sick infants, so to speak, in gross, brings danger to the youthful members of families living near. The aggregation multiplies the risk of ordinary existence, whatever may be the degree of care taken.

Who would willingly submit his child to such a chance? And, not being called upon to do so by the necessities of ordinary life, the imposition becomes an invasion of right. This is not a harsh application of the rule, because numberless locations are easily attainable where the beneficent charity could do its work with injury to none."

In Com. v. Charity Hospital (1901) 198 Pa. 270, 47 Atl. 980, affirming (1900) 31 Pittsb. L. J. N. S. 11, it was held, in an action to restrain the erection of a hospital treating contagious diseases contrary to a statute (Act of April 20, 1899, P. L. 66), that the legislature had the power to control the location of such institutions, the court saying: "The prohibition of the erection of hospitals in certain localities for the protection of the public health implies a determination by the legislature of the fact that such hospitals in such places are likely to be dangerous to the public health, and are, therefore, to be deemed nuisances; and this is as apparent from the act as if it were fully set out in a preamble to it."

In Mason v. Presbyterian Hospital (1900) 30 Pittsb. L. J. N. S. (Pa.) 359, an action by adjoining residents to restrain the defendants from building and maintaining a hospital, it was held that the Act of April 20, 1899, which prohibited additional hospitals in the residential and built-up sections of the city, did not apply to hospitals then existing.

In Milne v. Davidson (1827) 5 Mart. N. S. (La.) 409, 16 Am. Dec. 189, it appeared that the defendant, who maintained a private hospital (the nature of which is not stated) in the city of New Orleans, was expelled from the premises by the municipal authorities for violating an ordinance of the city of New Orleans, which prohibited the erection of a private hospital within the city limits. The court held that the ordinance was valid, and that the city had the power to restrict the erection and maintenance of private hospitals.

W. J. K.

(- Okla, , 179 Pac. 473.)

OKLAHOMA CITY, Plff. in Err.,


Oklahoma Supreme Court - February 11, 1919.

(- Okla. - 179 Pac. 473.)


Constitutional law - damaging property pesthouse.

1. Depreciation of the value of real property caused by establishing a hospital for contagious diseases, commonly known as a pesthouse, on adjacent land, although under statutory authority, constitutes a damaging of private property for public use, for which compensation must be made, within the meaning of $ 24, art. 2, of the Constitution.

[See note on this question beginning on page 1012.] - legislative authority - effect. for public use without just compensa. 2. That the city, in erecting and

tion. operating a hospital for contagious

[See 6 R. C. L. 474-476.] diseases, was exercising a lawful gov- Appeal error in favor of complainernmental function, did not warrant

ing party.

3. One cannot secure reversal of a its exercise in violation of the constitu

judgment because of error in his own tional guaranty to the citizen that pri- favor. vate property should not be damaged [See 2 R. C. L. 52-54.]

Headnotes 1 and 2 by OWEN, J.

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ERROR to the District Court for Oklahoma County to review a judgment in favor of plaintiff in an action brought to recover damages for depreciation of the market value of plaintiff's property, alleged to have been caused by the wrongful erection of pesthouses by defendant. Affirmed.

The facts are stated in the opinion of the court.

Messrs. B. D. Shear, A. T. Boys, and Y. Supp. 121; Stoddard v. Saratoga E. E. Blake for plaintiff in error. Springs, 127 N. Y. 261, 27 N. E. 1030;

Mr. James S. Twyford, for defend- Seifert v. Brooklyn, 101 N. Y. 136, 54 ant in error:

Am. Rep. 664, 4 N. E. 321; Bolton v. Defendant is liable for damages re- New Rochelle, 84 Hun, 281, 32 N. Y. sulting to plaintiff's property, caused Supp. 442; Jacobs v. Seattle, 93 Wash. by the location of the pesthouse or 171, L.R.A.1917B, 329, 160 Pac. 299; other nuisance, because the same is Platt Bros. & Co. v. Waterbury, 72 the damaging and taking of property Conn. 531, 48 L.R.A. 691, 77 Am. St. for a public use within the meaning of Rep. 335, 45 Atl. 154; Deaconess Home § 24 of article II. of the Constitution & Hospital v. Bontjes, 104 Ill. App. 492. of Oklahoma. Paducah v. Allen, 111 Ky. 361, 98

Owen, J., delivered the opinion of

the court: Am. St. Rep. 422, 63 S. W. 981; Louisville v. Hehemann, 161 Ky. 523, L.R.A. Kate Vetter brought suit against 1915C, 747, 171 S. W. 165; Hines v. the city to recover damages susRocky Mount, 162 N. C. 409, L.R.A. tained by the depreciation of the 19150, 751, 78 S. E. 510, Ann. Cas.

market value of blocks 11 and 12 of 1915A, 132; Sammons v. Gloversville, Silverwood addition to the city, con175 N. Y. 346, 67 N. E. 622; Gordon v.

taining 11 acres. She alleges, in Silver Creek, 127 App. Div. 888, 112 N.

substance, that in September, 1909, Y. Supp. 54; Herman v. Buffalo, 157 App. Div. 819, 143 N. Y. Supp. 205,

she was the owner of this tract of 214 N. Y. 316, 108 N. E. 451; Walker land, and that same was suitable v. New York, 107 App. Div. 351, 95 N.

for residential and home purposes, 4 A.L.R.-64.


and for that purpose was reason- cannot be deemed a nuisance, and ably worth the sum of $6,000; that for that reason the plaintiff has no on or about that date the defendant cause of action against the city. city purchased block 8 of this addi- The question is whether the location adjacent to her property, and tion of the pesthouses “damaged" wrongfully erected thereon pest- the plaintiff's property in the sense houses, or hospitals for the confine- in which the term is used in the Conment and treatment of malignant, stitution. The case of Frazer v. contagious, and infectious diseases; Chicago, 186 Ill. 480, 51 L.R.A. 306, that since the erection of such houses 78 Am. St. Rep. 296, 57 N. E. 1055, the defendant has wrongfully, care- supports the city's contention. The lessly, and negligently maintained Constitution adopted in Illinois in these pesthouses, and that same are 1870 provides that property shall a nuisance, by reason of which the not be taken or damaged for public plaintiff has suffered special injury use without just compensation, and and damage in the depreciation of in that case it was held that the dethe market value of her property preciation of the value of real propfor the purposes for which it was erty caused by establishing a smallsuitable.

pox hospital under statutory authorJudgment was for plaintiff in the ity did not constitute a taking or sum of $1,100, to reverse which the damaging of adjacent property city brings the case here.

within the meaning of the ConstituOn the trial of the case the court tion. But the Supreme Court of the permitted evidence of the market United States, in the case of Chicago value of the premises immediately v. Taylor, 125 U. S. 161, 31 L. ed. prior to the location of the houses, 638, 8 Sup. Ct. Rep. 820, held, under and as to the depreciation of the that provision of the Illinois Convalue since the erection and main- stitution, a recovery may be had in tenance of same up to the time of all cases where private property has the filing of the petition. But, after sustained a substantial damage by the plaintiff had concluded her evi- the making and using an improvedence, the court held and instructed ment that is public in its character, the jury that plaintiff could only and that it is not necessary that recover such damages as may have damages shall be caused by trespass resulted from improper manage- or an actual physical invasion of ment of the pesthouses, and not for the real estate; but if the constructhe location of the same. The city tion and operation of the improvecomplains of this action, and insists ment is the cause for that reason the judgment must of the damage, al- law-damaging

Constitutional be reversed. This constituted error, though consequen- property. but in the city's tial, the party may

pesthouse. Appeal-error in favor of com- favor, and, since the

recover. The opinion reviews a plaining party.

plaintiff is not ap- number of the Illinois cases, and pealing, this error furnishes no rea- quotes with approval from the case son to reverse the judgment.

of Chicago & W. I. R. Co. v. Ayres, The question necessary for de-, 106 Ill. 518, where it was said: “It termination is whether the plaintiff is needless to say our decisions have can recover damages for the location not been harmonious on this quesand maintenance of the hospital un- tion; but in the case of Rigney v. der the provisions of g 24, art. 2, of Chicago, 102 Ill. 64, there was a full our Constitution, which provides: review of the decisions of our courts, "Private property shall not be taken as well as the courts of Great Britor damaged for public use without ain, under a statute containing a just compensation."

provision similar to the provision in The contention of the city is that, our Constitution, The conclusion inasmuch as the pesthouses were lo- there reached was that under this cated under statutory authority, they constitutional provision a recovery (- Okle, -, 179 Pac. 473.) may be had in all cases where pri- pal corporation nor other governvate property has sustained a sub- mental agency is allowed to establish stantial damage by the making and or maintain a nuisance causing deusing an improvement that is pub- preciation or damage to property of lic in its character—that it does not private owners without being liable require that the damage shall be for it. In the case of Louisville v. caused by trespass, or an actual Hehemann, 161 Ky. 523, L.R.A. physical invasion of the owner's 1915C, 747, 171 S. W. 165, the sureal estate, but if the construction preme court of Kentucky makes a and operation of the railroad or distinction between injury to perother improvement is the cause of sons for negligence on the part of the damage, though consequential, agents or servants of municipal the party damaged may recover." corporations, committed while in the

It was held that the introduction discharge of some public duty, and of the word “damaged” into that injury done to property rights, al

“ clause of the Constitution indicated though likewise in the performance a deliberate purpose to abolish the of public duty. In that case the city old test of direct physical injury was held liable in damages for deto the property affected. The pro- preciation in value of adjoining vision in the earlier Constitution of property in permitting a city dump Illinois was that property should not to become a nuisance, under the conbe taken for public use without just stitutional provision requiring comcompensation. Justice Harlan, pensation for property injured for speaking for the court in this con- public use. nection, said: “The use of the word The Constitution of the state of 'damaged in the clause providing Washington provides that private for compensation to owners of pri- property shall not be damaged for vate property appropriated to pub- public use without just compensalic use could have been with no other tion having first been made; and in intention than that expressed by the the case of Jacobs v. Seattle, 93 state court. Such a change in the Wash. 171, L.R.A.1917B, 329, 160 organic law of the state was not Pac. 299, it was held that the erecmeaningless, but it would be mean- tion and maintenance by the city of ingless if it should be adjudged an incinerator for burning of garthat the Constitution of 1870 gave bage on land adjacent to that of the no additional or greater security to private owner, and in operation so private property, sought to be ap- as to depreciate the value of his propriated to public use, than was land, constituted a damaging of priguaranteed by the former Constitu- vate property for public use for tion.”

which he would be entitled to comIn the case of Paducah v. Allen, pensation, under the terms of the

. 111 Ky. 361, 98 Am. St. Rep. 422, Constitution. 63 S. W. 981, it was held the loca- In the case of E. I. Du Pont De tion of a pesthouse by the city near Nemours Powder Co. v. Dodson, 49 a farm was an injury, and a taking Okla, 58, 150 Pac. 1085, Mr. Chief of adjacent property for which com- Justice Kane, speaking for this pensation should be made. The court, said: “The rule in England Kentucky Constitution provides that that no damages or redress can be corporations and individuals invest- obtained in the courts for a nuied with the privilege of taking pri- sance, or any structure or use of vate property for public use shall real property, which does direct inmake just compensation for prop- jury to private property, provided erty “taken, injured, or destroyed.” Parliament has authorized the same, In the case of Hines v. Rocky Mount, and not provided for compensation 162 N. C. 409, L.R.A.1915C, 751, for such injuries, does not and can78 S. E. 510, Ann. Cas. 1915A, 132, not exist in this country. The rule it was held that neither a munici- in England is founded on the unre.

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