Mr. Justice McComas
delivered the opinion of the Court:
The eleven assignments of error involved several important questions.
First. The appellant contends that its acts complained of were done under proper legislative authority and requirement, and, even if the appellee suffered the damage found by the jury, it was a case of damnum absque injuria, and she was not entitled to recover. Now, the law relied on by the appellant authorized thi.s railroad company to construct, maintain, and operate a double-track railroad commencing at a point on the railroad of said company near the crossing of Second street, southwest, and over certain streets and avenues, “thence passing under the intersection of D street and New Jersey avenue, C street, southeast, and D street, southeast, at the intersection with First street,” etc. This act gives the railroad authority to construct and maintain the tunnel, with the tracks therein. It gives no authority to the appellant to erect and maintain the plant here [601]*601complained of, in tbe rear of appellee’s premises. Tbe material produced by the plant of appellant was necessary to be supplied to the railroad company at this point, which the law required the railroad company to construct and maintain. No provision of the law required or sanctioned the location of such a plant at this particular place, near by many dwelling houses, among which was the home of the appellee. The owner of the land permitted such location and operation of this plant. The acta of Congress relied on did not contemplate it, nor authorize this railroad company to permit or sanction such location, without reference to the property and rights of the appellee and others. Nothing in these acts of Congress authorizes or requires that the appellant’s concrete mixer, crushing machines, power plants, and other appliances should be so placed that their proper use would thus unreasonably interfere with and disturb the residents on New Jersey avenue and D streets, southeast, in the comfortable enjoyment of their property; nor do these acts confer any license upon the appellant to use such a plant as it maintained and operated, in disregard of the private rights of others, with immunity for their invasion. The evidence does not show that this location must necessarily be had in order to carry on the work of the appellant. It is true the steam shovel had to be operated at this point, and the earth excavated had to be carried away from this point. The appellant for its convenience elected, to maintain and operate its power house and all its machinery where it became a nuisance to the neighborhood, which substantially injured the appellee’s property and comfort of life. The class of cases wherein it was sought to recover damages for injuries sustained by the action of national, State, or municpal. authorities carrying on public works do not apply here. In Dana v. Rock Creek R. Co. 7 App. D. C. 482, this court denied, the right of a railroad company, a quasi-public corporation, to do the acts in that case stated, for its own private purposes, and benefits; and Mr. Justice Morris aptly said: “Now whatever may be the extent of the authority of the municipality to proceed without liability to the adjacent owners in the use of' the public thoroughfares for public purposes, it cannot be that. [602]*602either the municipality itself or the legislative authority can confer rights upon a private corporation, or upon a private individual, in derogation of the public right, and not in pursuance of it, that would justify such private corporation or individual in the invasion of the private rights of others, and constitute an exemption from liability.”
In the ease of Baltimore & P. R. Co. v. Reaney, 42 Md. 131, Judge Alvey said: “In this case the jury have found that the property of the ■ appellee has been damaged to the extent of $3,000; and it would be a reproach to the law if the courts were required to determine that it was a case of damnum absque injuria, and that there was no redress for such a wrong. There is no reason why the appellee should be required to bear such a loss, it not being for any municipal benefit, but for the benefit of a private railroad corporation, with which he is no more concerned than any other individual of the state. If he could be required to bear this loss of $3,000, he could and would be required to bear the loss if it were to the full extent of the value of his property; and thus a party might have his house utterly destroyed, and yet be without a remedy to obtain redress. Such is not the state of the law, as applicable to a case like the present. * * * That there was no negligence or want of care in doing the work is no answer in a case like this. If the injury was the inevitable result of making the tunnel, then, to the extent that the appellee’s property was actually injured, it was substantially taken for the use of the appellants’ •road, and, of course, should be paid for. It is not to be assumed that either the city authorities or the legislature of the state intended that the authority delegated by them should be •exercised irrespective of the rights of private property; ánd, if it were clear that they did so intend, it is far from being certain that such a purpose could be accomplished; Gardner v. Newburgh, 2 Johns. Ch. 162, 7 Am. Dec. 526; Eaton v. Boston, C. & M. R. Co. 51 N. H. 504, 12 Am. Rep. 147; Pumpelly v. Green Bay & M. Canal Co. 13 Wall. 166, 20 L. ed. 557.
“That the excavation of the street for the tunnel was lawful, [603]*603-and done in a lawful manner at the time, can constitute no defense to this action, if damages actually resulted from the work. There are many cases in which an act may be perfectly lawful in itself, and will continue to be so, until damage has been done to the property or person of another; but from the moment such damage arises the act becomes unlawful, and an action is maintainable for the injury.”
In the present case this filtration company lacked the qualified sanction under which the quasi-public corporations in the cases to which we have referred sought protection. This private corporation as a private contractor performing work for this railroad company can find no shelter under statutes which authorize and require the railroad company to dig a tunnel and maintain and operate tracks therein. It is probable had the stone crusher and cement mixer and the power plant been located and maintained elsewhere, the injury which the jury found the appellee to have suffered might not have happened, but the filtration company elected to incur the risk of injuring the appellee. Although it was not guilty of a physical invasion, an injured party may recover in some cases, without such a taking, for consequential injuries. See Baltimore Belt R. Co. v. Sattler, 100 Md. 330, 59 Atl. 654. The court below did not err in excluding the evidence proffered by the appellant to show that its work complained of was performed under contract with this railroad company, and was part of the work which the law authorized and required the railroad company to execute, and to show that the appellant exercised due care to avoid unnecessary damage to the plaintiff and to the public.
Second. It is claimed the court below erred in refusing to instruct the jury to return a verdict for the defendant, because the evidence did not enable the jury to apportion the damages to the plaintiff caused by the defendant, and to separate it from damage caused by the cars and engines of said railroad company.
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Mr. Justice McComas
delivered the opinion of the Court:
The eleven assignments of error involved several important questions.
First. The appellant contends that its acts complained of were done under proper legislative authority and requirement, and, even if the appellee suffered the damage found by the jury, it was a case of damnum absque injuria, and she was not entitled to recover. Now, the law relied on by the appellant authorized thi.s railroad company to construct, maintain, and operate a double-track railroad commencing at a point on the railroad of said company near the crossing of Second street, southwest, and over certain streets and avenues, “thence passing under the intersection of D street and New Jersey avenue, C street, southeast, and D street, southeast, at the intersection with First street,” etc. This act gives the railroad authority to construct and maintain the tunnel, with the tracks therein. It gives no authority to the appellant to erect and maintain the plant here [601]*601complained of, in tbe rear of appellee’s premises. Tbe material produced by the plant of appellant was necessary to be supplied to the railroad company at this point, which the law required the railroad company to construct and maintain. No provision of the law required or sanctioned the location of such a plant at this particular place, near by many dwelling houses, among which was the home of the appellee. The owner of the land permitted such location and operation of this plant. The acta of Congress relied on did not contemplate it, nor authorize this railroad company to permit or sanction such location, without reference to the property and rights of the appellee and others. Nothing in these acts of Congress authorizes or requires that the appellant’s concrete mixer, crushing machines, power plants, and other appliances should be so placed that their proper use would thus unreasonably interfere with and disturb the residents on New Jersey avenue and D streets, southeast, in the comfortable enjoyment of their property; nor do these acts confer any license upon the appellant to use such a plant as it maintained and operated, in disregard of the private rights of others, with immunity for their invasion. The evidence does not show that this location must necessarily be had in order to carry on the work of the appellant. It is true the steam shovel had to be operated at this point, and the earth excavated had to be carried away from this point. The appellant for its convenience elected, to maintain and operate its power house and all its machinery where it became a nuisance to the neighborhood, which substantially injured the appellee’s property and comfort of life. The class of cases wherein it was sought to recover damages for injuries sustained by the action of national, State, or municpal. authorities carrying on public works do not apply here. In Dana v. Rock Creek R. Co. 7 App. D. C. 482, this court denied, the right of a railroad company, a quasi-public corporation, to do the acts in that case stated, for its own private purposes, and benefits; and Mr. Justice Morris aptly said: “Now whatever may be the extent of the authority of the municipality to proceed without liability to the adjacent owners in the use of' the public thoroughfares for public purposes, it cannot be that. [602]*602either the municipality itself or the legislative authority can confer rights upon a private corporation, or upon a private individual, in derogation of the public right, and not in pursuance of it, that would justify such private corporation or individual in the invasion of the private rights of others, and constitute an exemption from liability.”
In the ease of Baltimore & P. R. Co. v. Reaney, 42 Md. 131, Judge Alvey said: “In this case the jury have found that the property of the ■ appellee has been damaged to the extent of $3,000; and it would be a reproach to the law if the courts were required to determine that it was a case of damnum absque injuria, and that there was no redress for such a wrong. There is no reason why the appellee should be required to bear such a loss, it not being for any municipal benefit, but for the benefit of a private railroad corporation, with which he is no more concerned than any other individual of the state. If he could be required to bear this loss of $3,000, he could and would be required to bear the loss if it were to the full extent of the value of his property; and thus a party might have his house utterly destroyed, and yet be without a remedy to obtain redress. Such is not the state of the law, as applicable to a case like the present. * * * That there was no negligence or want of care in doing the work is no answer in a case like this. If the injury was the inevitable result of making the tunnel, then, to the extent that the appellee’s property was actually injured, it was substantially taken for the use of the appellants’ •road, and, of course, should be paid for. It is not to be assumed that either the city authorities or the legislature of the state intended that the authority delegated by them should be •exercised irrespective of the rights of private property; ánd, if it were clear that they did so intend, it is far from being certain that such a purpose could be accomplished; Gardner v. Newburgh, 2 Johns. Ch. 162, 7 Am. Dec. 526; Eaton v. Boston, C. & M. R. Co. 51 N. H. 504, 12 Am. Rep. 147; Pumpelly v. Green Bay & M. Canal Co. 13 Wall. 166, 20 L. ed. 557.
“That the excavation of the street for the tunnel was lawful, [603]*603-and done in a lawful manner at the time, can constitute no defense to this action, if damages actually resulted from the work. There are many cases in which an act may be perfectly lawful in itself, and will continue to be so, until damage has been done to the property or person of another; but from the moment such damage arises the act becomes unlawful, and an action is maintainable for the injury.”
In the present case this filtration company lacked the qualified sanction under which the quasi-public corporations in the cases to which we have referred sought protection. This private corporation as a private contractor performing work for this railroad company can find no shelter under statutes which authorize and require the railroad company to dig a tunnel and maintain and operate tracks therein. It is probable had the stone crusher and cement mixer and the power plant been located and maintained elsewhere, the injury which the jury found the appellee to have suffered might not have happened, but the filtration company elected to incur the risk of injuring the appellee. Although it was not guilty of a physical invasion, an injured party may recover in some cases, without such a taking, for consequential injuries. See Baltimore Belt R. Co. v. Sattler, 100 Md. 330, 59 Atl. 654. The court below did not err in excluding the evidence proffered by the appellant to show that its work complained of was performed under contract with this railroad company, and was part of the work which the law authorized and required the railroad company to execute, and to show that the appellant exercised due care to avoid unnecessary damage to the plaintiff and to the public.
Second. It is claimed the court below erred in refusing to instruct the jury to return a verdict for the defendant, because the evidence did not enable the jury to apportion the damages to the plaintiff caused by the defendant, and to separate it from damage caused by the cars and engines of said railroad company. There was no material evidence of injury caused by the railroad company. Wynkoop testified that several locomotives hauled loaded cars away from the dump, and emitted smoke, and made the noise incident to a moving train; [604]*604and another witness testified that the railroad company’s engines burned soft coal and emitted smoke. The material evidence, however, was that it was the plant and machinery of the appellant which produced dirt, dust, smoke, cinders, and filled the air with fine particles of cement and stone, and that these things entered the doors and windows of the plaintiff, and that the loud noises, continuing day and night, from the various appliances and machines of the appellant, disturbed the plaintiff’s sleep and comfort of living, and injured her health. The doctrine stated in Patton v. Texas & P. R. Co. 179 U. S. 658, 45 L. ed. 361, 21 Sup. Ct. Rep. 275, is not applicable to this case. Here the testimony did not leave any uncertainty, for all the testimony tended to show that the various injuries and discomforts for which the plaintiff sued were caused by the plant and machinery of the defendant.
Third. It is true the court, in illustrating in its oral charge the different kinds of damages which might happen in such a case as this, incautiously discussed a possible damage by diminution of rental value. After carefully examining the record and the charge, — because it had been granted by both sides that all evidence upon the subject of rental value should be withdrawn from the jury, the court had already informed the jury that, although they had heard evidence on the subject of rental value, such evidence had been ruled out and they should pay no attention to it in making up their verdict, and in substance said to them that there was no evidence in this case tending to show the rental value of the plaintiff’s property nor the diminution of its rental value in consequence of the injury sued for,— we are convinced that the court’s instruction as to the measure of damages in a case of diminution of rental value did not mislead the jury, who had been positively instructed that no evidence on the subject was to be considered by them, and that all evidence relating thereto had been withdrawn, before the court delivered its oral charge.
Fourth. The appellant was not injured by the court’s refusal to instruct the jury that the plaintiff could not recover damages for inconvenience or annoyance suffered by members [605]*605of her family. The plaintiff’s husband did testify that in ■consequence of the operation of defendant’s plant 'he could not sleep in certain rooms of the house, and a lodger in the house testified that from these operations she experienced inconvenience while in the house. These witnesses testified concerning the existence of the nuisance, and it was useless to caution the jury not to allow the plaintiff damages on account of the testimony of the these witnesses.
A petition by the appellant, filed June 7, 1907, for a writ of error to the Supreme Court of the United States, was granted, and the writ allowed June 8, 1907.
We find no reason for reversing this judgment. It must be affirmed, with costs, and it is so ordered.