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ity intended to erect a smallpox hospital on land owned by it and situated in a cemetery in the plaintiff's township limits. It was held that the mere erection of the hospital did not, prima facie, show a nuisance which should be restrained, and that the plaintiffs must show an actual nuisance.

In Withington Local Bd. of Health v. Manchester [1893] 2 Ch. (Eng.) 19, the action was brought by the board of health of a township to restrain the defendant municipality from erecting a smallpox hospital on land owned by the municipality and situated within the territory of the plaintiff township, which was not an adjoining township to the municipality. The plaintiff contended that such action on the part of the defendant should be restrained, as being prohibited and made illegal by the following statutes: First, by the Public Health Act 1875, § 112, which reads, in part, as follows: "Any person who, after the passing of this act, establishes within the district of an urban authority, without their consent in writing, any offensive trade; that is to say, the trade of blood boiler, or bone boiler, or fell monger, or soap boiler, or tallow melter, or tripe boiler, or any other noxious or offensive trade, business or manufacture, shall be liable to a penalty;" second, by § 131 of the same act, which, in part, reads: "Any local authority may provide for the use of the inhabitants of their district hospitals or temporary places for the reception of the sick, and for that purpose may themselves build such hospitals or places of reception; or contract for the use of any such hospital or part of a hospital or place of reception; or enter into any agreement with any person having the management of any hospital, for the reception of the sick inhabitants of their district, on payment of such annual or other sum as may be agreed on. Two or more local authorities may combine in providing a common hospital;" third, by § 285 of the same act, to the following effect: "Any local authority may, with the consent of the local authority of any adjoining district, execute and do in such adjoining district all or any of such works and things as

they may execute and do within their own district." The court, construing these sections of the Public Health Act of 1875, §§ 112, 131, and 285 respectively, held that a smallpox hospital was not a noxious business within the purview of and analogous to § 112; that, the land upon which the proposed hospital was to be erected being owned by the defendant municipality, no prohibition against the building of the hospital could be spelled out of § 131; and further, that, as the operation of § 285 is confined specifically to adjoining towns and municipalities, it did not apply to the present case. The court did not go into the question of nuisance.

In Elizabethtown Twp. v. Brockville (1885) 10 Ont. Rep. 372, it appeared that the defendant, a township, established and maintained a hospital for the treatment of smallpox in the plaintiff's municipal limits, without having the required permission of the township, in which the municipality was located. It was held that such an act was forbidden by the regulations passed by the central board of health of Quebec, which reads as follows: "No smallpox patient shall be conveyed from one municipality into another without the permission of the local board of health of the municipality to which the patient is being conveyed."

In Summit Twp. v. Jackson (1908) 154 Mich. 37, 18 L.R.A. (N.S.) 260, 117 N. W. 545, an action was brought to restrain the city of Jackson from using a hospital situated in the plaintiff's jurisdiction for the treatment of infectious diseases. The court held that there was no authority of law given to either the municipality or the township to invade the territory of the other, and that the defendant could not bring patients infected with dangerous communicable diseases within the township, without first obtaining permission therefor from its proper officers.

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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 location 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.

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(Okla., 179 Pac. 473.)

Constitutional law damaging property


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.]

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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 E. E. Blake for plaintiff in error.

Mr. James S. Twyford, for defendant in error:

Defendant is liable for damages resulting to plaintiff's property, caused by the location of the pesthouse or other nuisance, because the same is the damaging and taking of property for a public use within the meaning of § 24 of article II. of the Constitution of Oklahoma.

Paducah v. Allen, 111 Ky. 361, 98 Am. St. Rep. 422, 63 S. W. 981; Louisville v. Hehemann, 161 Ky. 523, L.R.A. 1915C, 747, 171 S. W. 165; Hines v. Rocky Mount, 162 N. C. 409, L.R.A. 1915C, 751, 78 S. E. 510, Ann. Cas. 1915A, 132; Sammons v. Gloversville, 175 N. Y. 346, 67 N. E. 622; Gordon v. Silver Creek, 127 App. Div. 888, 112 N. Y. Supp. 54; Herman v. Buffalo, 157 App. Div. 819, 143 N. Y. Supp. 205, 214 N. Y. 316, 108 N. E. 451; Walker v. New York, 107 App. Div. 351, 95 N. 4 A.L.R.-64.

Y. Supp. 121; Stoddard v. Saratoga Springs, 127 N. Y. 261, 27 N. E. 1030; Seifert v. Brooklyn, 101 N. Y. 136, 54 Am. Rep. 664, 4 N. E. 321; Bolton v. New Rochelle, 84 Hun, 281, 32 N. Y. Supp. 442; Jacobs v. Seattle, 93 Wash. 171, L.R.A.1917B, 329, 160 Pac. 299; Platt Bros. & Co. v. Waterbury, 72 Conn. 531, 48 L.R.A. 691, 77 Am. St. Rep. 335, 45 Atl. 154; Deaconess Home & Hospital v. Bontjes, 104 Ill. App. 492. Owen, J., delivered the opinion of the court:

Kate Vetter brought suit against the city to recover damages sustained by the depreciation of the market value of blocks 11 and 12 of Silverwood addition to the city, containing 11 acres. She alleges, in substance, that in September, 1909, she was the owner of this tract of land, and that same was suitable for residential and home purposes,

and for that purpose was reasonably worth the sum of $6,000; that on or about that date the defendant city purchased block 8 of this addition adjacent to her property, and wrongfully erected thereon pesthouses, or hospitals for the confinement and treatment of malignant, contagious, and infectious diseases; that since the erection of such houses the defendant has wrongfully, carelessly, and negligently maintained these pesthouses, and that same are a nuisance, by reason of which the plaintiff has suffered special injury and damage in the depreciation of the market value of her property for the purposes for which it was suitable.

Judgment was for plaintiff in the sum of $1,100, to reverse which the city brings the case here.

On the trial of the case the court permitted evidence of the market value of the premises immediately prior to the location of the houses, and as to the depreciation of the value since the erection and maintenance of same up to the time of the filing of the petition. But, after the plaintiff had concluded her evidence, the court held and instructed the jury that plaintiff could only recover such damages as may have resulted from improper management of the pesthouses, and not for the location of the same. The city complains of this action, and insists for that reason the judgment must be reversed. This constituted error, but in the city's favor, and, since the plaining party. plaintiff is not appealing, this error furnishes no reason to reverse the judgment.

Appeal-error in favor of com

The question necessary for de-. termination is whether the plaintiff can recover damages for the location and maintenance of the hospital under the provisions of § 24, art. 2, of our Constitution, which provides: "Private property shall not be taken or damaged for public use without just compensation."

The contention of the city is that, inasmuch as the pesthouses were located under statutory authority, they

cannot be deemed a nuisance, and for that reason the plaintiff has no cause of action against the city. The question is whether the location of the pesthouses "damaged" the plaintiff's property in the sense in which the term is used in the Constitution. The case of Frazer v. Chicago, 186 Ill. 480, 51 L.R.A. 306, 78 Am. St. Rep. 296, 57 N. E. 1055, supports the city's contention. The Constitution adopted in Illinois in 1870 provides that property shall not be taken or damaged for public use without just compensation, and in that case it was held that the depreciation of the value of real property caused by establishing a smallpox hospital under statutory authority did not constitute a taking or damaging of adjacent property within the meaning of the Constitution. But the Supreme Court of the United States, in the case of Chicago v. Taylor, 125 U. S. 161, 31 L. ed. 638, 8 Sup. Ct. Rep. 820, held, under that provision of the Illinois Constitution, a recovery may be had in all cases where private property has sustained a substantial damage by the making and using an improvement that is public in its character, and that it is not necessary that damages shall be caused by trespass or an actual physical invasion of the real estate; but if the construction and operation of the improvement is the cause



of the damage, al- law-damaging
though consequen- pesthouse.
tial, the party may

recover. The opinion reviews a number of the Illinois cases, and quotes with approval from the case of Chicago & W. I. R. Co. v. Ayres, 106 Ill. 518, where it was said: "It is needless to say our decisions have not been harmonious on this question; but in the case of Rigney v. Chicago, 102 Ill. 64, there was a full review of the decisions of our courts, as well as the courts of Great Britain, under a statute containing a provision similar to the provision in our Constitution. The conclusion there reached was that under this constitutional provision a recovery

(Okla., 179 Pac. 478.)

may be had in all cases where private property has sustained a substantial damage by the making and using an improvement that is public in its character-that it does not require that the damage shall be caused by trespass, or an actual physical invasion of the owner's real estate, but if the construction and operation of the railroad or other improvement is the cause of the damage, though consequential, the party damaged may recover."

It was held that the introduction of the word "damaged" into that clause of the Constitution indicated a deliberate purpose to abolish the old test of direct physical injury to the property affected. The provision in the earlier Constitution of Illinois was that property should not be taken for public use without just compensation. Justice Harlan, speaking for the court in this connection, said: "The use of the word 'damaged' in the clause providing for compensation to owners of private property appropriated to public use could have been with no other intention than that expressed by the state court. Such a change in the organic law of the state was not meaningless, but it would be meaningless if it should be adjudged that the Constitution of 1870 gave no additional or greater security to private property, sought to be appropriated to public use, than was guaranteed by the former Constitution."

In the case of Paducah_v. Allen, 111 Ky. 361, 98 Am. St. Rep. 422, 63 S. W. 981, it was held the location of a pesthouse by the city near a farm was an injury, and a taking of adjacent property for which compensation should be made. The Kentucky Constitution provides that corporations and individuals invested with the privilege of taking private property for public use shall make just compensation for property "taken, injured, or destroyed." In the case of Hines v. Rocky Mount, 162 N. C. 409, L.R.A.1915C, 751, 78 S. E. 510, Ann. Cas. 1915A, 132, it was held that neither a munici

pal corporation nor other governmental agency is allowed to establish or maintain a nuisance causing depreciation or damage to property of private owners without being liable for it. In the case of Louisville v. Hehemann, 161 Ky. 523, L.R.A. 1915C, 747, 171 S. W. 165, the supreme court of Kentucky makes a distinction between injury to persons for negligence on the part of agents or servants of municipal corporations, committed while in the discharge of some public duty, and injury done to property rights, although likewise in the performance of public duty. In that case the city was held liable in damages for depreciation in value of adjoining property in permitting a city dump to become a nuisance, under the constitutional provision requiring compensation for property injured for public use.

The Constitution of the state of Washington provides that private property shall not be damaged for public use without just compensation having first been made; and in the case of Jacobs v. Seattle, 93 Wash. 171, L.R.A.1917B, 329, 160 Pac. 299, it was held that the erection and maintenance by the city of an incinerator for burning of garbage on land adjacent to that of the private owner, and in operation so as to depreciate the value of his land, constituted a damaging of private property for public use for which he would be entitled to compensation, under the terms of the Constitution.

In the case of E. I. Du Pont De Nemours Powder Co. v. Dodson, 49 Okla, 58, 150 Pac. 1085, Mr. Chief Justice Kane, speaking for this court, said: "The rule in England that no damages or redress can be obtained in the courts for a nuisance, or any structure or use of real property, which does direct injury to private property, provided Parliament has authorized the same, and not provided for compensation for such injuries, does not and cannot exist in this country. The rule in England is founded on the unre

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