the court conceded that the property was subjected to an injurious servitude. Lord CAIRNS dissented from this construction and adopted the broader, more catholic view-injuriously affected by the construction-as a way-going concern. Our constitutional provision is somewhat similar to the English statute, and the Pennsylvania Supreme Court has, I think correctly, taken a position similar to that of Lord CAIRNS, that the word "construction" means the way-going concern. Of course, this does not mean that the railroad is always liable for damages arising from the use, this contention would be absurd, but what it does mean is this: upon paying damages arising from the construction of the road as a way-going concern, and thus having subjected the property to a perpetual servitude, and having paid for this right of servitude, of course it can use it. Had the word "use" been resorted to in the Constitution, it would probably have been contended that the road would have been continually liable for these damages, whereas by the use of the word "construction" in the sense of a way-going concern, it follows that whenever a road subjects a property to a perpetual servitude, and pays for the injury resulting from that servitude, it receives in return a perpetual right to charge that property with the said servitude, and, of course, is never again liable for the said use. That the Pennsylvania Supreme Court has held that the word "construction" is used in the sense of a way-going concern, I think is beyond doubt.1 says: You can create railroads, you can authorize them to run anywhere, you can authorize them to exercise their powers, but subject to compensation for the injuries they cause. Railroads had, previously to the new Constitution, been liable where land was taken for the injury as a way-going concern, and the people in the Constitution used the word "construction" in that sense. 1In Lycoming Gas Water Co. v. Moyer, 3 Out. 615, if in the "construction" of its works any injury should be done to private property, compensation should be made. Moyer claimed damages, because the company tapped a small run, in order to procure water for its works, thereby diminishing the flow of water into his race. That is, the water was taken from the race for the company's use as way-going concern, yet the charter provided compensation for injury in the "construction;" still the court held that Moyer should recover"construction" meant the way-going concern. To the same effect is City of Reading v. Althouse, 12 Norris 400, under the new Constitution. In Western Penn. Rd. v.. Hill, 6 Smith 460, Hill claimed damages for decrease of the business of the mill, by reason of the danger of driving horses near it, and the danger to persons going to and from the mill. The court said: the direct and There is another legal principle which requires explanation. "Every man has the right to the natural use and enjoyment of his own property, and if, whilst lawfully in such use and enjoyment, without negligence or malice on his part an unavoidable loss occurs to his neighbor, it is damnum absque injuria, for the rightful use of one's land may cause damage to another without any legal wrong." This principle is expressed in the maxim, "sic utere tuo, ut alienum non loedus," of which it has been said, the maxim "is no help to decision, as it cannot be applied till the decision is made." This is very true, but there is an underlying principle illustrating what the courts have considered "the natural use and enjoyment of one's own property." Our own Supreme Court has clearly shown this distinction in the following cases: In Penn. Coal Co. v. Sanderson, 18 W. N. C. 181, the plaintiff claimed damages for the pollution of a stream running through his land by the "pumpings" out of a mine on the company's work, the said "pumpings" being the necessary result of the natural use and development of the coal property. The court held, in effect, as the property was coal property, the natural use of it was to develop it, and that the removal of the water from the workings of a coal mine was essential to the business of coal mining, as also was its discharge into the natural water courses. In Pottstown Gas Co. v. Murphy, 3 Wright 257, the plaintiff below claimed damages because the gas from the company's works percolated into his well. The company urged not immediate results of the "construction" of a road over land taken, if injurious, gives title to compensation, and as the court sustained Hill's claim, they must have used the word "construction" in the sense of a way-going concern, for that was the only way in which Hill claimed damages. To the same effect is Hornstein v. Atlantic, etc., Rd., 1 Smith 87. In Wilmington, etc., Rd. v. Stauffer, 10 Smith 374, Stauffer claimed damages for the loss of use of his barn, which by reason of its proximity to the railroad, was rendered unsafe to use as a barn from the danger of fire. The court sustained this claim, thus holding the railroad as a way-going concern. In the above, I have cited a few cases under the new Constitution-where the words used are "in the construction of their works, etc., etc.,” and a few cases under the General Railroad Act of 1849—where the words used in providing for damages (see Purdon, p. 1219, § 35), are: “in consequence of the making or opening of said railroad, etc., etc.,” so it is clear beyond question, that the Supreme Court have interpreted the words "making or opening" and "construction," as meaning a way-going concern. liable, because authorized by the legislature to carry on this business, that is, to use their own property for the purpose for which they had been incorporated, but the court held they were liable for damages. Now what is the difference between these two types of cases? Neither was possessed of eminent domain, so the question was clearly, what is the proper use of one's property? One was liable in damages for the use he made of his property, whilst the other was not. The coal company's use of its land was the absolute, proper, and legitimate use of it, it was the only profitable and economic use to which the land could be placed, and the bringing the water to the surface of the mine and allowing it to find the natural water-courses was a necessity of the making a proper use of the land, hence the doctrine, sic utere tuo, ut alienum non lædas, was complied with; in the case of the gas company it was not a clear legitimate use of the land; the percolating of the gas was not the outgrowth of the use, but it was something which the gas company produced on the land, and, therefore, for the gas company to place their works in such a position as to injure a neighbor was their own deliberate act and was not the absolute economic legitimate use of their own land as land, hence liable. Again, in a late English case in the House of Lords, Hammersmith, etc., Ry. Co. v. Brand, L. R., 4 Eng. & Irish App. 195, it was shown that a railway in a city was not a natural use of land. Mr. Justice BLACKBURN, saying: "I think it is agreed on all hands that if a person not authorized by act of parliament, so to do, erected a railway or any other private road on his own land, and then worked it by running locomotives and trains or any other species of carriages upon it, so that the vibrations and noise were to such an extent as really to be annoying a neighbor, that injury would be a nuisance." What is a nuisance? It is subjecting another's property "to a servitude whereby the owner's interest in the same is injuriously affected. It is the continuous doing of something which interferes with another's health or comfort in the occupation of his property, such as carrying on a noisy or offensive trade. It is not necessary to constitute private nuisance that the acts or state 1 We have previously shown that parliament is sovereign and can legalize a nuisance. of things complained of should be noxious in the sense of being injurious to health. It is enough that there is a natural interference with the ordinary comfort and convenience of life—the physical comfort of human existence-by an ordinary and reasonable standard." Pollock on Torts 330 et seq. Smoke, unaccompanied with noise or noxious vapors ; noise alone; offensive vapor alone, although not injurious to health, may severally constitute a nuisance to the owner of an adjoining or neighboring property.1 I have placed the word "neighboring" in italics because it is very important to note that nuisance upon principle and authority, cannot be confined to an adjoining property alone. From the very definition of the word it will be seen that it extends to all who suffer from it, "it is the continuous doing of something which interferes with another's health or comfort in the occupation of his property." Now if the same thing which is a nuisance to an adjoining owner is established to have interfered with the health and comfort of another (but not an adjoining owner), in the occupation of his property, upon what principle is one to recover and the other not? There is none!! The true principle is—a nuisance is a nuisance to all who experience it, without any question of adjoining or neighboring owner. Of course, an adjoining owner may suffer a nuisance which does not affect a neighboring owner, but this is a question of fact, not of principle. There is another important question in proving an actionable nuisance, and that is the appropriateness of the place for the work carried on. Upon this point, JESSEL, M. R.,2 said he followed Mr. Justice MELLOR, in St. Helens' Smelting Co. v. Tipping, 11 House of Lords Cas. 642, where the latter held, an actionable nuisance was the producing sensible discomfort to one person. Then he went on to say that in an action for nuisance to property arising from noxious vapors, the injury to be actionable must be such as visibly to diminish the value of the property and the comfort and enjoyment of it. The jury ought to consider all the circumstances, including locality, and that with respect to this, it was clear that in counties where great works had been erected and carried on, persons must not stand on their 1 Crump v. Lambert, L. R., 3 Eq. 412, per ROMILLY, M. R. extreme rights and bring actions in respect of every matter of annoyance, for if so, the business of the whole county would be seriously interfered with. Lord CRANWORTH said, upon the question of appropriateness of place,1 "I remember trying an action for an injury from smoke, in the town of Shields. It was proven that smoke did come and interfere with the plaintiff, but I said, you must look at it not with a view to the question whether, abstractedly that quantity of smoke was a nuisance, but whether it was a nuisance to a person living in the town of Shields, because if it only added in an infinitesimal degree to the quantity of smoke, I held that the state of the town rendered it altogether impossible to call that an actionable nuisance." This is the same principle which lead the court below in McCaffrey's App.,2 to refuse the injunction to stop the works. But independent of the fact of a person going to a nuisance or of a nuisance previously existing-as smoke in Shields— where the smoke only added to the nuisance in an infinitesimal degree, there yet remains a well-defined principle, which governs the question. As was said by Lord SELLBORNE, L. C.,3 " Many houses have stables attached to them, but a man who turns the whole ground floor of a London house into a stable, or otherwise keeps a stable so near a neighbor's living rooms that the inhabitants are disturbed all night, does so at his own risk; in making out a case of nuisance of this character, there are always two things to be considered-the right of the plaintiff and the right of the defendant. If either party turns his house, or any part of it to unusual purposes, in such manner as to produce a substantial injury to his neighbor, it appears to me that that is not, according to principle or authority, a reasonable use of his own property, and his neighbor showing substantial injury, is entitled to protection." A most important point in this question of appropriateness of place, is this-to whom should this question be left? In the case I have lately referred to Mr. Justice MELLOR put the following question to the jury-was the place appropriate? Although 1 St. Helen's Smelting Co. v. Tipping, 11 House of Lords 652. 15 W. N. C. 12. 8 Ball v. Ray, 8 L. R., Ch. App. 469. St. Helen's Smelting Ca. v. Tipping, supra. VOL. XXXVI.-3 |