Academy of the Sacred Heart of Mary v. Philadelphia, Baltimore, & Washington Railroad

36 App. D.C. 372, 1911 U.S. App. LEXIS 5585

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 6, 1911
• Docket: No. 2150
• Status: Published

Opinion

Mr. Chief Justice Shepard

delivered the opinion of the Court:

The first assignment of error is on the exclusion of evidence offered by the plaintiff, of the value of the building. A competent witness was offered and asked to state the structural value of plaintiff’s buildings.

In answer to the inquiry of the court, if damages for permanent depreciation of value were claimed, counsel for plaintiff replied: We do not claim for anything except for the inconvenience and the nuisance for the time being; that is all.

The Court: You may show the depreciation of the rental value of the building.

Counsel: The witness is not competent oil the question of rental value. .

The Court: I take it, from the opening statement, that there is no claim for permanent depreciation in value.

Counsel: I take it, under our declaration, we could not recover for that; that is, not for the purpose of getting any damages for the permanent depreciation of the building, but it is rather to show the character of the building, to the comfortable use and enjoyment of which these sisters were entitled.

The evidence was excluded and exception noted.

Upon the pleadings and the disclaimer of counsel, we perceive no error in the court’s action. The size, character, appearance, and uses of the building had been fully proved; and it was to the injury done to the use that the action was directed.

Another assignment of error is on exception taken to the introduction in evidence, on behalf of defendant, of the special license of the Secretary of War permitting the defendant to occupy temporarily with its tracks public reservation No. 113. The plaintiff objected on the ground that the government could give the defendant no authority that would avail as a defense to the action. The court held it admissible to show that defendant had a legal right to operate on the reservation, and announced that its effect would be governed by instructions to the jury. When the cause was submitted to the jury, the court refused a prayer of defendant to the effect that, by reason of the authority given, if the defendant operated its trains with reasonable care, it would not be liable for smoke, dust, etc., necessarily resulting from said use.

Of his own motion the court then charged the jury that, as the square was public property, the government could give the right to its use; but if private rights were affected, as-a • result, the license was no protection against the private owner ; and that one of these rights was the free and undisturbed enjoyment of the uses of his property. We agree with the learned trial justice that the license was admissible to show that the defendant was not a mere trespasser upon the public property occupied; but could not have the effect to relieve it of responsibility for the invasion of the plaintiff’s premises in the manner complained of. A special prayer of the plaintiff was also given to the same effect.

The remaining assignments of error relate to the refusal of special prayers of the plaintiff, and may be considered under one head. One of these was an abstract proposition relating to-the rights of property, and the general principle which it contained was given in the charge as above recited, with special application' to the evidence. Another that was refused was to this effect. If by the obstructions of 7th and 9th streets for unreasonable lengths of time, at places where pupils attending, and persons living in, the academy had to pass in order to get to and away therefrom, the jury may award such damages to the plaintiff for special inconvenience and injury thereby caused to it, as they may deem reasonable and just. A second prayer on the same line added that if, by reason of the nuisances created by noise, smoke, jarring of the building, etc., many persons. who had been in attendance upon plaintiff’s school ceased to attend the same, to the injury of the plaintiff, the jury might award damages therefor. The first of these prayers was refused on the ground, substantially restated in the general charge, that the plaintiff had no right of action for inconvenience caused individuals by the obstruction of the street at points not adjacent to plaintiff’s property. This was a correct statement of the law as applied to the evidence. There was no evidence of any obstruction preventing ingress and egress from the plaintiff’s lot by way of the abutting street, at any point thereon, or adjacent thereto. The inconvenience referred to was one to the general public. The additional prayer was rightfully refused, because there was no evidence whatever that pupils were lost to plaintiff’s school by reason of any of the injuries complained of. This limitation of the rule of law was made perfectly plain by the further instructions given at the request of plaintiff and in the general charge. A prayer given for the plaintiff was that the jury might assess damages in such sum as in their opinion will fairly compensate plaintiff for the injury it has sustained in the deprivation of the use and enjoyment of its property, during the period covered by the declaration; and it is not necessary that the jury should be able to fix the damages with absolute certainty, but may assess the same, acting as fair men, in such sum as in their judgment will compensate plaintiff for the injuries it has sustained. Two other similar instructions prayed for were also given. Each of these contained an elaborate recital of the various injurious acts of the defendant relating to the emission of smoke, the making of constant noise, the jarring of the building, emission of offensive smells, etc., during the said period.

Another special prayer given for the plaintiff was that the proper measure of damage is such sum as will reasonably compensate plaintiff for the deprivation of the beneficial use and occupation of the property, and for such molestation, annoyance;* and disturbance in the enjoyment of its premises as it has suffered, if any, by the acts of the defendant. Exception was taken, and error is complained of, for the refusal of another special instruction to the same general effect. Obviously, this was not error. In the general charge, moreover, which was declared to be perfectly satisfactory by the plaintiff, and was not, therefore, excepted to, the jury were instructed that to whatever extent private property may have been injuriously affected by the use defendant made of the public property, it was liable. Without reiterating the elements of damage, the court referred the jury to the special prayers given at the request of the plaintiff, as correctly stating the same.

In support of this contention plaintiff relies on the decision in Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U. S. 317, 27 L. ed. 739, 2 Sup. Ct. Rep. 719. In our opinion there was no failure of application of the doctrine of that case. That action was brought for similar acts by the railroad company. It was alleged that the effect of the nuisance created by defendant was to interfere with religious exercises, break up the Sunday school, and destroy the value of the building as a place of public worship. Evidence was introduced tending to support these allegations, and further that the rental value of the building was from $1,200 to $1,600 per year and had been practically destroyed; also that the railroad company’s occupation had depreciated the value of the property 50 per cent. In the present case there was no proof that the school was broken up, or reduced in size with a loss of revenue. Permanent depreciation in value was disclaimed; and there was no proof of injury to rental value. The claim was limited to the damage resulting from the acts which harrassed and annoyed the plaintiff in its uses of the property. The jury were authorized to assess damages for these, without evidence of actual pecuniary loss. It seems somewhat strange that, under the evidence and instructions, the jury should not have awarded some damages to the plaintiff, but if the jury failed in its duty the matter was one for the court to correct on motion for a new trial. No error of law having been shown to have been committed in the introduction of the evidence and charge of the court, the refusal of a new trial is not a ground of appeal.

The judgment will be affirmed, with costs. Affirmed.