Opinion,
Mr. Justice Gordon :
The above named three several cases involving, as they do, similar facts and principles of law and having been argued together, we dispose of in one opinion. The actions are case, and the plaintiffs, who own property on the north side of Filbert street, in the city of Philadelphia, severally complain, that the Pennsylvania Railroad company, being a corporation duly chartered under the laws of this state, and invested with the privilege of taking private property for its corporate use, did, 'on the first day of May, 1881, construct, as an extension of its system of tracks and road bed, a viaduct or elevated roadway, and railroad thereon, along the south side of Filbert street, opposite to their several lots of ground: That since December 1, 1881, the said cqmpany, defendant, has used and operated the said viaduct, in connection with its other tracks, as a continuous line of railroad for the transportation of passengers and freight to and from its terminal passenger and freight station, and as a yard for shifting and making up trains: That in consequence of the noise, disturbance, smoke, [481]*481sparks, and noisome and unhealthy vapors, occasioned and emitted by the defendant’s cars and locomotives, great injury has been done to the plaintiff’s property. It is not alleged that any injury has resulted from the erection of this elevated roadway, nor, indeed, could it truthfully be so alleged; for the erection is on the defendant’s own ground, on the south side.of the said street, which street is some fifty-one feet wide, so that no part of the plaintiff’s property, or any right of way, or other appurtenance thereunto belonging, has been taken or used in the erection or construction of said viaduct. The damage complained of results wholly from the manner in which the roadway is used; results from the noise, smoke and dust arising from the use of the engines and cars; the necessary consequence of the use .of the property as a steam railway. As-the allegations thus made were in whole or in part supported by evidence, the learned judge instructed the jury that the measure of damage would be the difference between the market value of the several properties before the building of the viaduct, and the same value after the structure was completed. In other words, the same rule was applied to the cases in 'hand as that which applies in the case of an appropriation or taking under the right of eminent domain, excepting, of course, that as no property of any kind was taken, that element of damage was not considered. This instruction together with the negative answer of the court to the defendant’s first point, raises all the questions that require consideration in this case.
That there was error in. the instruction above stated, is, to us, very clear. This structure having been erected on the defendant’s own land, and no property, or right, of the plaintiffs having been seized, appropriated or interfered with, we cannot understand how a rule which applies only to a taking, and never did apply to anything else, can be adapted to a ease where there has been no such taking. It is not pretended that the erection itself, did the plaintiffs any harm, but its use only; that is, the running of locomotives on it. We agree, indeed, that if the ordinary and proper use of the railway is to be regarded as an element of damage, as to a certain extent it is in the case of a condemnation, the rule stated is the correct one; but as this rule is not one of common-law but of [482]*482statute, it cannot apply to. the case now being considered: Railroad Co. v. Yeiser, 8 Penn. St. 366. Unless, therefore, the case can be brought within some statute, the rule by which damages are measured by advantages and disadvantages ought not to have been adopted; for, as was said, in the case cited, per Mr. Justice Rogers, “ it is a principle well settled by many adjudicated cases, that an action does not lie for a_ reasonable use of one’s right though it be to the injury of another. For the lawful use of his own property, a party is not answerable in damages, unless on proof of negligence.” How, then, we ask, can a lawful erection by the Pennsylvania Railroad Company, on its own ground, be the subject of damage to the adjoining land-owners? And why may it not as put by the defendant’s first point, operate and use, in a lawful manner, its Filbert street branch without subjecting itself to an action for damage ? It seems to be very clear that a private person could do with impunity, on his own property, just what the railroad company has done. He might build a house, and thus shut out his neighbor’s view, light and air; he might build an embankment, or run a road on or along his own line, and be liable for nothing as long as he used his house, embankment or road in a lawful manner, although in either case an injury may have been done to the adjacent property.
Who does not know that even in the country no householder escapes injury and annoyance from clouds of dust raised in dry weather by the passage of teams over the common roads? And in the cities this grievance is further aggravated by the intolerable noise occasioned by the use of stone pavements. Nevertheless, we have yet to hear of a case where one lawfully using such road or street was held liable for the injury thus occasioned.
When a company takes, by its right of eminent domain, part of a tract of land, and the damage to the balance is to be measured by the advantage over the disadvantage resulting from the company’s works, in such case, as we held, in Searle v. The Railroad Co., 33 Penn. St. 57, contingent and even imaginary damages may be considered by way of offset to the alleged advantages. But whilst this is so, such damages cannot be regarded as a substantive claim. And we have a reiteration of the same doctrine in the case of the New Castle & [483]*483Franklin Railroad Co. v. McChesney, 85 Penn. St. 522, wherein Mr. Justice Woodward remarks, citing the case above named: “ It is well settled, even under more comprehensive legislation than this, that contingent damages cannot be taken into account as a substantive claim for damage.” How tiren, can we apply to the case in hand a rule of damages that never was applicable except under special circumstances which do not here exist ?
It is contended, however, that this case is governed by the constitution of 1874, which provides, Art. XVI., sec. 8, “ Municipal and other 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 construction or enlargement of their works, highways or improvements; ” and the cases of Pusey v. The City of Allegheny, 98 Penn. St. 522; Pittsburgh Junction Railroad Co. v. McCutcheon, 18 W. N. C. 527; Pennsylvania Railroad Co.’s App. Id. 418, and the Pennsylvania Railroad v. Duncan, 111 Penn. St. 352, are cited in support of the rule contended for by the plaintiffs. But it is a mistake to suppose that these cases are in point. In the first, there was not only the construction of a road but an actual taking; in the Junction Railroad and Duncan cases, the injury arose directly from the construction of the works, and the taking and obstruction of the plaintiffs’ rights of way; whilst the Pennsylvania Railroad Company’s Appeal covers a case where, without warrant of law, the company laid its tracks on a public street of the borough of Middletown.
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Opinion,
Mr. Justice Gordon :
The above named three several cases involving, as they do, similar facts and principles of law and having been argued together, we dispose of in one opinion. The actions are case, and the plaintiffs, who own property on the north side of Filbert street, in the city of Philadelphia, severally complain, that the Pennsylvania Railroad company, being a corporation duly chartered under the laws of this state, and invested with the privilege of taking private property for its corporate use, did, 'on the first day of May, 1881, construct, as an extension of its system of tracks and road bed, a viaduct or elevated roadway, and railroad thereon, along the south side of Filbert street, opposite to their several lots of ground: That since December 1, 1881, the said cqmpany, defendant, has used and operated the said viaduct, in connection with its other tracks, as a continuous line of railroad for the transportation of passengers and freight to and from its terminal passenger and freight station, and as a yard for shifting and making up trains: That in consequence of the noise, disturbance, smoke, [481]*481sparks, and noisome and unhealthy vapors, occasioned and emitted by the defendant’s cars and locomotives, great injury has been done to the plaintiff’s property. It is not alleged that any injury has resulted from the erection of this elevated roadway, nor, indeed, could it truthfully be so alleged; for the erection is on the defendant’s own ground, on the south side.of the said street, which street is some fifty-one feet wide, so that no part of the plaintiff’s property, or any right of way, or other appurtenance thereunto belonging, has been taken or used in the erection or construction of said viaduct. The damage complained of results wholly from the manner in which the roadway is used; results from the noise, smoke and dust arising from the use of the engines and cars; the necessary consequence of the use .of the property as a steam railway. As-the allegations thus made were in whole or in part supported by evidence, the learned judge instructed the jury that the measure of damage would be the difference between the market value of the several properties before the building of the viaduct, and the same value after the structure was completed. In other words, the same rule was applied to the cases in 'hand as that which applies in the case of an appropriation or taking under the right of eminent domain, excepting, of course, that as no property of any kind was taken, that element of damage was not considered. This instruction together with the negative answer of the court to the defendant’s first point, raises all the questions that require consideration in this case.
That there was error in. the instruction above stated, is, to us, very clear. This structure having been erected on the defendant’s own land, and no property, or right, of the plaintiffs having been seized, appropriated or interfered with, we cannot understand how a rule which applies only to a taking, and never did apply to anything else, can be adapted to a ease where there has been no such taking. It is not pretended that the erection itself, did the plaintiffs any harm, but its use only; that is, the running of locomotives on it. We agree, indeed, that if the ordinary and proper use of the railway is to be regarded as an element of damage, as to a certain extent it is in the case of a condemnation, the rule stated is the correct one; but as this rule is not one of common-law but of [482]*482statute, it cannot apply to. the case now being considered: Railroad Co. v. Yeiser, 8 Penn. St. 366. Unless, therefore, the case can be brought within some statute, the rule by which damages are measured by advantages and disadvantages ought not to have been adopted; for, as was said, in the case cited, per Mr. Justice Rogers, “ it is a principle well settled by many adjudicated cases, that an action does not lie for a_ reasonable use of one’s right though it be to the injury of another. For the lawful use of his own property, a party is not answerable in damages, unless on proof of negligence.” How, then, we ask, can a lawful erection by the Pennsylvania Railroad Company, on its own ground, be the subject of damage to the adjoining land-owners? And why may it not as put by the defendant’s first point, operate and use, in a lawful manner, its Filbert street branch without subjecting itself to an action for damage ? It seems to be very clear that a private person could do with impunity, on his own property, just what the railroad company has done. He might build a house, and thus shut out his neighbor’s view, light and air; he might build an embankment, or run a road on or along his own line, and be liable for nothing as long as he used his house, embankment or road in a lawful manner, although in either case an injury may have been done to the adjacent property.
Who does not know that even in the country no householder escapes injury and annoyance from clouds of dust raised in dry weather by the passage of teams over the common roads? And in the cities this grievance is further aggravated by the intolerable noise occasioned by the use of stone pavements. Nevertheless, we have yet to hear of a case where one lawfully using such road or street was held liable for the injury thus occasioned.
When a company takes, by its right of eminent domain, part of a tract of land, and the damage to the balance is to be measured by the advantage over the disadvantage resulting from the company’s works, in such case, as we held, in Searle v. The Railroad Co., 33 Penn. St. 57, contingent and even imaginary damages may be considered by way of offset to the alleged advantages. But whilst this is so, such damages cannot be regarded as a substantive claim. And we have a reiteration of the same doctrine in the case of the New Castle & [483]*483Franklin Railroad Co. v. McChesney, 85 Penn. St. 522, wherein Mr. Justice Woodward remarks, citing the case above named: “ It is well settled, even under more comprehensive legislation than this, that contingent damages cannot be taken into account as a substantive claim for damage.” How tiren, can we apply to the case in hand a rule of damages that never was applicable except under special circumstances which do not here exist ?
It is contended, however, that this case is governed by the constitution of 1874, which provides, Art. XVI., sec. 8, “ Municipal and other 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 construction or enlargement of their works, highways or improvements; ” and the cases of Pusey v. The City of Allegheny, 98 Penn. St. 522; Pittsburgh Junction Railroad Co. v. McCutcheon, 18 W. N. C. 527; Pennsylvania Railroad Co.’s App. Id. 418, and the Pennsylvania Railroad v. Duncan, 111 Penn. St. 352, are cited in support of the rule contended for by the plaintiffs. But it is a mistake to suppose that these cases are in point. In the first, there was not only the construction of a road but an actual taking; in the Junction Railroad and Duncan cases, the injury arose directly from the construction of the works, and the taking and obstruction of the plaintiffs’ rights of way; whilst the Pennsylvania Railroad Company’s Appeal covers a case where, without warrant of law, the company laid its tracks on a public street of the borough of Middletown. In the case in hand the plaintiffs sustained no injury from the construction of the viaduct; none of their property was taken, neither was anjr of their rights infringed; so that neither by the Constitution, nor by the cases quoted, is there a warrant for the plaintiffs’ contention. We agree, that over and beyond the damages which arise from a taking of property, whether in the shape of land or a right, the constitution does impose on corporations a direct responsibility for every injury for which a natural person would be liable at common law; so we have held in the case of Edmundson v. The Railroad Company, 111 Penn. St. 316, and to this doctrine we adhere, for such, we think, is the spirit of that instrument; but beyond this we cannot go. Nor is there [484]*484any reason why we should depart from a rule so reasonable, and subject artificial persons to a burden which cannot be imposed upon natural persons.
As was said by Mr. Chief Justice Tilghman, in the case of Shrunk v. The Navigation Co., 14 S. & R. 71, in his comments on the company’s charter, which provided that compensation should be made “if any person, or persons, shall be injured by .means of any dam or dams being erected as hereinafter mentioned”; “compensation shall be made,” says the learned Chief Justice, “ for all damages arising from immediate injury to property, but not for any damages where there is no legal injury, which is called damnum absque injuria. And upon reflection we will find that this was a wise restriction. There would be no end to damages for injuries, considered in the most extensive sense of the word. For not only may owners of land contiguous to the river complain of injury by obstruction of the ascent of the fish, but all other persons living in towns or on lands near the river. There are other kinds of injury, too, sustained, particularly by owners of lands on the river, between Fairmount Dam and the Lower Falls; all these persons have lost the benefit of navigation free from toll, in batteaus, flats, etc., which was very useful, as it served for carrying produce to market, and bringing up manure for their lands; yet it has not been contended that for such injuries compensation is to be made. Suppose the health of the country to be injured by the evaporation from the dam; is compensation to be made for this, the greatest of all injuries ? I presume not. Where then, are we to stop, or what is to be the boundary, if we go beyond the line which I have-mentioned ? ”
This is the language of a very learned jurist, and the case is all the more in point in that the wording of the charter of the Navigation Company, and that of the present constitution is very much alike. Nor would the onerous and ruinous consequences be less to the defendant than those which the learned Chief Justice shows might befall the canal company were the doctrine contended for adopted. Every person who has property in city or country within hearing of the noise, or in reach of the'dust of a railroad, or, for that matter, of a common road, might, in the case supposed, have damages to be [485]*485estimated as in the taking of land, or as from a permanent injury arising from the construction of the railroad. If this Pennsylvania Company has been guilty of a nuisance; if in the use of its road it makes more smoke or dust than is lawfully allowable in the working of its machinery, and the plaintiffs are thereby injured they have their remedy, but not for anything short of this. Any other rule would lead to this remarkable result, that the plaintiffs would be entitled to damages without having suffered any injury; that is, for anticipated damages, and for which a natural person could not be held liable. Moreover the corporation would thus be made responsible for the manner in which it proposed to exercise its right, though such manner might not only be lawful, but the best possible, and the least injurious to the property of others. That the defendant might have hauled its freight and passengers by ordinary carriages drawn by horses from its West Philadelphia depot, through Filbert street to its station .at Broad and Market, without the risk of actionable damage, will, I suppose, not be doubted; yet, certainly, the resulting noise, dust and annoyance to the adjacent property-holders would in such case be greater than under the present arrangement. Why then, for a better method of transportation shall it be held liable? To this question no answer has been given but the dogmatic one already alluded to: “the constitution so provides.” But as the constitution does not so provide, and .as the plaintiffs’ contention has no support either in statute or common law, we must refuse to entertain it.
The judgments are reversed, and a venire facias de novo in each case is awarded.
Mr. Justice Trunkey and Mr. Justice Sterrett, dissent.
PENN. R. CO. v. HUNTER.
Opinion, Mr. Justice Gordon :
June 1, 1887. This cause was argued with other causes by same plaintiff in error v. Lippincott, Church of the Covenant, and Sterner, and for reasons stated in the opinion already filed, Judgment reversed.
Me. Justice Teunkey and Me. Justice Steeeett, dissent.