first, Now that proposition obviously implies these two things that the particular thing complained of must have been authorized by the Legislature; and secondly, that in doing that particular thing reasonable care must be taken that no unnecessary damage be done. In the present case all that has been sanctioned by the Legislature is the erection of a lunatic asylum, or lunatic asylums; they may be made in any place; the patients may be so distributed in such manageable numbers as that no nuisance may be occasioned at all. Such sites may be chosen, and such ground taken as to render it impossible that there shall be any nuisance to an adjoining proprietor. But an Act of Parliament merely authorizing the erection of such an asylum cannot justify an interference with the rights of neighbors to the extent contended for on the part of the defendants. . . . I think, therefore, the order must be discharged, and that the decree should be made in the from suggested by the Lord Chancellor. 1152. METROPOLITAN DISTRICT ASYLUM v. HILL. (1881. L. R. 6 App. Cas. 193, 212.) Lord WATSON. . . . I do not think that the Legislature can be held to have sanctioned that which is a nuisance at common law, except in the case where it has authorized a certain use of a specific building in a specified position, which cannot be so used without occasioning nuisance, or in the case where (the particular plan or locality not being prescribed) it has imperatively directed that a building shall be provided within a certain area and so used, it being an obvious or established fact that nuisance must be the result. In the latter case, the onus of proving that the creation of a nuisance will be the inevitable result of carrying out the directions of the Legislature, lies upon the person seeking to justify the nuisance. Their justification depends upon their making good these two propositions in the first place, that such are the imperative orders of the Legislature; and in the second place, that they cannot possibly obey those orders without infringing private rights. 1153. RADCLIFF'S EXECUTORS v. MAYOR & ALDERMEN OF BROOKLYN COURT OF APPEALS OF NEW YORK. 1850 4 N. Y. 195 THE executors of the late Peter W. Radcliff brought an action on the case in the Supreme Court against the Mayor and Common Council of the city of Brooklyn. The declaration alleged that the plaintiff's testator was seized of a lot of land in Brooklyn, with a dwelling-house, out-houses and gardens thereon, adjacent to the East river but a considerable distance above it, which were sustained by a natural bank having a gradual descent to the river; that the defendants on the 11th of May, 1838, wrongfully dug away the said natural bank whereby the premises were undermined, and a part of the inclosed ground, together with the shrubbery, fixtures; fences, &c. fell, and were wholly lost to the said testator, and whereby also he was put to great expense in endeavoring to restore the premises, &c. The defendants pleaded that before the commission of the alleged grievances, Furman street, in the city of Brooklyn, had been lawfully laid out and opened, the east line of which ran along and adjacent to said premises; that the defendants as a municipal corporation, by virtue of the powers conferred on them by law, took regular and legal proceedings for the grading and levelling of said street; that upon such grading and levelling, the plaintiff's testator neglected to uphold his said premises which lay above the grade of the street, and a portion of the premises fell, &c. which are the same grievances, &c. The plea also denied all negligence or want of care in the execution of the work. . . The Supreme Court sitting in the first district, after argument of the demurrer, gave judgment in favor of the defendants and the plaintiffs appealed to this court. A. H. Dana, for appellants. H. C. Murphy, for respondents. BRONSON, C. J. 1. The common council of the city of Brooklyn has ample authority to lay out, open, grade, level and pave streets within the city. When lands are taken for a street, the owner is to be paid his damages, to be assessed by commissioners. But there is no provision for paying consequential damages, or such as may result to persons whose lands are not taken. (Stat. 1833, p. 499, §§ 1, 2, 16; id. 1838, p. 119, §§ 1, 2.) Such is my construction of the statutes touching the question. . . . There is no charge that the defendants acted maliciously; nor do the pleadings impute to them any want of skill or care in doing the work. The defendants are a public corporation; and the act in question was done for the benefit of the public, and under ample authority, if the Legislature had power to grant the authority, without providing for the payment of such consequential damages as have fallen upon the testator. . . . In levelling and grading the street, they were at work in their own land, doing a lawful act for a lawful purpose. They did not touch the testator's property; and the question is, whether the damage which resulted to him in consequence of grading the street, must not be regarded as damnum absque injuria. The maxim sic utere tuo ut alienum non laedas, is not of universal application; for, as a general rule, a man who exercises proper care and skill may do what he will with his own property. . . . The case before us seems to fall within the principle that a man may enjoy his land in the way such property is usually enjoyed, without being answerable for the indirect or consequential damages which may be sustained by an adjoining landowner. 2. But if that be a doubtful position, there is a class of cases directly on the point in judgment, which hold that persons acting under an authority conferred by the Legislature to grade, level and improve streets and highways, if they exercise proper care and skill, are not answerable for the consequential damages which may be sustained by those who own lands bounded by the street or highway. And this is so whether the damage results either from cutting down or raising the street; and although the grade of the street had been before established, and the adjoining landowners had erected buildings with reference to such grade. As this doctrine has often been asserted, and has never been denied in any well considered judgment, I shall do little more than refer to some of the cases where it may be found. Private property cannot be taken for public use without making just compensation to the owner; and a law which authorizes the taking without providing for compensation, must be unconstitutional and void. But laws which authorize the opening and improving of streets and highways, or the construction of other works of a public nature, have never been held void because they omitted to provide compensation for those who, though their property was not taken, suffered indirect or consequential damages. The loss which they sustain has always been regarded as damnum absque injuria. . . . If any one will take the trouble to reflect, he will find it a very common case that the property of individuals suffers an indirect injury from the constructing of public works; and yet I find but a single instance of providing for the payment of damages in such a case. (Brown v. City of Lowell, 8 Metc. 172.) The opening of a new thoroughfare may often result in advancing the interest of one man or a class of men, and even one town, at the expense of another. The construction of the Erie Canal destroyed the business of hundreds of tavern-keepers and common carriers between Albany and Buffalo, and greatly depreciated the value of their property, and yet they got no compensation. And new villages sprung up on the line of the canal, at the expense of old ones on the former line of travel and transportation. Railroads destroy the business of stage proprietors, and yet no one has ever thought a railroad charter unconstitutional, because it gave no damages to stage owners. The Hudson river railroad will soon drive many fine steamboats from the river; but no one will think the charter void because it does not provide for the payment of damages to the boat owners. A fort, jail, workshop, fever hospital, or lunatic asylum, erected by the government, may have the effect of reducing the value of a dwelling-house in the immediate neighborhood; and yet no provision for compensating the owner of the house has ever been made in such a case. Many other illustrations might be mentioned, but it cannot be necessary to enlarge. The opening of a street in a city is not necessarily an injury to the adjoining land-owners. On the contrary, it is in almost every instance a benefit to them. . . . He often gets the benefit for nothing, when the value of his land is increased by opening or improving a street or highway; and he must bear the burden in the less common case of a depreciation in value in consequence of the work. It may be added, that when men buy and build in cities and villages, they usually take into consideration all those things which are likely to affect the value of their property, and particularly what will probably be done by way of opening and grading streets and avenues. Whether in cases of this kind the Legislature ought, as a matter of equity, to provide for the payment of such damages as are merely consequential, we are not called upon to decide. It is enough for us to say, that a law which makes no such provision is not, for that reason, unconstitutional and void. I am of opinion that the judgment of the Supreme Court is right, and should be affirmed. Judgment affirmed. 1154. COGSWELL v. NEW YORK, NEW HAVEN & COURT OF APPEALS OF NEW YORK. 1886 103 N. Y. 10 APPEAL from judgment of the General Term of the Superior Court, of the city of New York, entered upon an order made December 12, 1881, which affirmed a judgment in favor of defendant, entered upon a decision of the Court on trial without a jury. (Reported below, 16 J. & S. 31.) This action was brought to recover damages to plaintiff's premises in the city of New York, alleged to have been caused by the use on the part of defendant of an engine-house on adjoining premises, and to restrain such use. ... Lewis Johnston, for appellant. . . . Assuming that the defendant was duly authorized by legislative grant to acquire lands for the purpose and to construct the engine-house and shops for its sole use, independently of the New York and Harlem Railroad Company, as held by the Court below, that Court is in error in holding that the injuries complained of and found as facts by the court below are damnum absque injuria. . . . Authorizing a corporation to do such acts upon its own land as shall destroy or seriously impair the enjoyment of the adjoining land of a citizen is a "taking" of the land of such citizen within the meaning of the Constitution, and although such authority be given for "public purposes," if provision be not made for "compensation" to the party injured the authority is void. . . . Private convenience is no excuse for infringing upon the rights of another under the tyrant's plea of "necessity." H. H. Anderson, for respondent. . . The defendant has explicit legislative authority to take, hold and use the land in question for the purposes of its business, by virtue of its charter. . . ANDREWS, J. We are relieved, by the findings of the trial judge, from any question as to the sufficiency of the evidence to establish that the engine-house, as used by the defendant, constitutes, under the general rule of law, a private nuisance to the property of the plaintiff. . . . The correctness of the findings of fact, made by the Court, is not questioned by the defendant. The Court placed its judgment, denying relief, upon the ground that the defendant was a railroad corporation, authorized by law to acquire real estate for an engine-house; that an engine-house at the point where this engine-house was erected was necessary for the operation of its road; and that in the construction and use of the enginehouse and coal-bins, it had exercised all practicable care. The finding of law from these premises was that "whatever damage has resulted to the plaintiff or her property, by reason of the defendant's use and occupation of its engine-house and coal-bins, is damnum absque injuria." It is manifest that if this judgment can stand, a most serious injury is inflicted by the defendant upon the plaintiff for which she has no redress. Her premises are subjected to a burden in the nature of a servitude in favor of the defendant, which seriously impairs the value and enjoyment of her property. The principle upon which the Court below proceeded, was that what the Legislature has authorized the defendant to do, can neither be a public nor private wrong; in other words, the Legislature has authorized the maintenance of this nuisance by the defendant and the plaintiff must bear the consequences. The Court below, in denying any relief to the plaintiff, of course assumed that the legislative authority and the act of the defendant thereunder resulting in flooding the plaintiff's premises with soot, smoke and noxious gases was not a taking of the plaintiff's property within the Constitution. We place our judgment in this case on the ground that the Legislature has not authorized the wrong of which the plaintiff complains, and it is, therefore, unnecessary to determine whether the Legislature could have authorized it consistently with the principles of the Constitution for the security of private rights, without providing for compensation. . . ... It is undoubtedly true that there are cases in which the Legislature in the public interest may authorize and legalize the doing of acts. resulting in consequential injury to private property, without providing compensation, and as to which the legislative sanction may be pleaded in bar of any claim for indemnity. . . . The legislative power in this country is subject to restrictions, but nevertheless private property is frequently subjected to injury, from the execution of public powers conferred by statute, for which there is no redress. The case of consequential injuries resulting from street improvements authorized by the legislature is a familiar example. In Radcliff v. Mayor, 4 N. Y. 195 [supra, No. 1153], which is a leading case, the corporation of Brooklyn laid out, opened, and graded a street, under authority contained in the charter, and the Court held that in the absence of negligence, the city was not liable for consequential damages suffered by the plaintiff from the sliding down of his land, caused by the cutting down of the street, and thereby removing the lateral support. The Court in its opinion. declared that it had never been considered that consequential damages. to private property, resulting from the opening and improving streets or highways, or other work of a public nature, could be recovered. |