The opinion of the court was delivered by
Dixon, J.
The complainants are owners and occupants of a dwelling-house on the southerly side of Bridge avenue, between Second and Third streets, in the city of Camden. The defendant’s tracks run through the central part of Bridge avenue in front of complainants’ dwelling, across Second street, into its terminal yard, which extends from the westerly side of Second street to the Delaware river.
The bill avers that the defendant uses its tracks in front of the complainants’ house for the purpose of distributing cars and making up trains in its freight and passenger business, and that it keeps locomotives and cars laden with live stock standing there, so that by reason of the stenches, noises, smoke, steam and dirt thereby occasioned, the comfort of the complainants’ [327]*327home is seriously impaired, and hence they pray an injunction to restrain the defendant from continuing in that course of conduct.
The answer denies that the defendant uses its tracks in front of complainants’ dwelling for the purpose of distributing cars and making up trains, and as a siding for cars, loaded with live stock or otherwise,' and, generally, alleges that said tracks are used only in such modes as the proper transaction of its business necessitates.
The evidence is clear that the tracks mentioned are continually used in the manner set out in the bill. The defendant’s train-master, at Camden, testifying for the company, states that the company uses Bridge avenue above Second street considerably for the purpose of drilling, and that he could not transact the company’s business without doing so ; that he is not in the habit of permitting cars loaded with cattle, sheep and swine to remain upon the track between Second and Third streets longer than he must, before getting them down into the yard after they come into the street. These occurrences take place at various hours of the day and up to eleven o’clock at night; ordinarily, he says, not later than that time. The proofs presented by the complainants, and not controverted on behalf of the defendant, establish that the use of the tracks thus admitted results in the nuisances of which complaint is made.
The fact that these nuisances are continuous, and materially diminish the comfort of complainants in their residence, makes the case one proper for an equitable remedy by injunction, unless the defendant can justify its conduct. Ross v. Butler, 4. C. E. Gr. 294, and cases there cited.
The defendant’s justification was rested, at the argument, upon the ground that the legislature and the common council of Camden had authorized the defendant to use Bridge avenue for. its business, that its business requires such use as the defendant has hitherto made, and therefore the use cannot be, in a legal sense, injurious.
There are two sufficient answers to this claim.
The first is that neither the legislature nor the common council has attempted to grant so extensive a privilege as is here set [328]*328up. The charter of the Camden and Amboy Railroad Company, passed February 4th, 1830, authorized it to construct and operate a railroad, with all necessary appendages, within limits embracing the locality now under consideration. In 1834 the Camden common council, by resolution, authorized that company to use Bridge avenue for the purposes of its roadway. In 1855 the legislature (P. L. of 1855 p. 118; Rev. p. 919 § 65) authorized railroad companies, whose incorporating acts limited the quantity of land which they might hold at their stations, to purchase and hold so much land as might be strictly necessary for most conveniently storing and working upon their engines, cars, fuel and materials to be used 'On their roads, and for receiving and delivering property transported on their roads to the best advantage, and for tracks, wagon-roads, platforms, and all other strictly station and railroad purposes. In 1862 the city council, by “ an ordinance to afford facilities to the Camden and Amboy Railroad Company for the running óf their trains through the city of Camden,” gave its consent and authority to the company to lay side tracks, running obliquely from a point on the railroad, along Bridge avenue, between Second and Third streets, to and upon the company’s depot property lying west of Second street. From these laws and regulations arise whatever rights the defendant, which is the lessee of the Camden and Amboy Railroad Company, appears to have in Bridge avenue, in front of complainants’ house. In our judgment, they indicate that those rights are such as pertain to the use of the avenue for the purposes of a way, not for the purposes of a station-yard. The primary privilege given is that of passage; this and its reasonable incidents cover the whole scope of the grant. The right of storing engines and ears, either for a longer or a shorter period, the right of making up or breaking up trains, are not embraced in such a concession. These are strictly station and terminal purposes, and by providing for station-yards the legislature has indicated its intention that business of that nature should be transacted there. We do not say that the company may not, under any circumstances, do upon its roadway what ought commonly to be done in its yards; for, no doubt, unforseen occurrences may some[329]*329times render such acts almost indispensable, and then other less urgent rights, of the public at least, must give way. But when, in the ordinary course of its business, the company devotes a portion of its roadway to station purposes, it goes beyond express legislative sanction, and can support itself, if at all, only as a private individual might. This is what the defendant did in Bridge avenue. Having a right of passage there, it used its tracks as though they were within its terminal yard, and so used them constantly in its every-day concerns. For this there is no legislative or municipal authority.
But, secondly, an act of the legislature cannot confer upon individuals or private corporations, acting primarily for their own profit, although for public benefit as well, any right to deprive persons of the ordinary enjoyment of their property, except upon condition that just compensation be first made to the owners. This principle rests upon the express terms of the constitution. In declaring that private property shall not be taken without recompense, that instrument secures to. owners, not only the possession of property, but also those rights which render possession valuable. Whether you flood the farmer’s fields so that they cannot be cultivated, or pollute the bleacher’s stream so that his fabrics are stained, or fill one’s dwelling with smells and noise so that it cannot be occupied in comfort, you equally take away the owner’s property. In neither instance has the owner any less of material things than he had before, but in each case the utility of his property has been impaired by a direct invasion of the bounds of his private dominion. This is the taking of his property in a constitutional sense; of course, mere statutory authority will not avail for such an interference with private property. This doctrine has been frequently enforced in our courts. In Trenton Water Power Co. v. Raff, 7 Vr. 335, Mr. Justice Depue said: “The destruction of private property, either total or partial, or the diminution of its value by an act of the government directly, and not merely incidentally affecting it, which deprives the owner of the ordinary use of it, is a taking within the meaning of the constitutional provision.
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The opinion of the court was delivered by
Dixon, J.
The complainants are owners and occupants of a dwelling-house on the southerly side of Bridge avenue, between Second and Third streets, in the city of Camden. The defendant’s tracks run through the central part of Bridge avenue in front of complainants’ dwelling, across Second street, into its terminal yard, which extends from the westerly side of Second street to the Delaware river.
The bill avers that the defendant uses its tracks in front of the complainants’ house for the purpose of distributing cars and making up trains in its freight and passenger business, and that it keeps locomotives and cars laden with live stock standing there, so that by reason of the stenches, noises, smoke, steam and dirt thereby occasioned, the comfort of the complainants’ [327]*327home is seriously impaired, and hence they pray an injunction to restrain the defendant from continuing in that course of conduct.
The answer denies that the defendant uses its tracks in front of complainants’ dwelling for the purpose of distributing cars and making up trains, and as a siding for cars, loaded with live stock or otherwise,' and, generally, alleges that said tracks are used only in such modes as the proper transaction of its business necessitates.
The evidence is clear that the tracks mentioned are continually used in the manner set out in the bill. The defendant’s train-master, at Camden, testifying for the company, states that the company uses Bridge avenue above Second street considerably for the purpose of drilling, and that he could not transact the company’s business without doing so ; that he is not in the habit of permitting cars loaded with cattle, sheep and swine to remain upon the track between Second and Third streets longer than he must, before getting them down into the yard after they come into the street. These occurrences take place at various hours of the day and up to eleven o’clock at night; ordinarily, he says, not later than that time. The proofs presented by the complainants, and not controverted on behalf of the defendant, establish that the use of the tracks thus admitted results in the nuisances of which complaint is made.
The fact that these nuisances are continuous, and materially diminish the comfort of complainants in their residence, makes the case one proper for an equitable remedy by injunction, unless the defendant can justify its conduct. Ross v. Butler, 4. C. E. Gr. 294, and cases there cited.
The defendant’s justification was rested, at the argument, upon the ground that the legislature and the common council of Camden had authorized the defendant to use Bridge avenue for. its business, that its business requires such use as the defendant has hitherto made, and therefore the use cannot be, in a legal sense, injurious.
There are two sufficient answers to this claim.
The first is that neither the legislature nor the common council has attempted to grant so extensive a privilege as is here set [328]*328up. The charter of the Camden and Amboy Railroad Company, passed February 4th, 1830, authorized it to construct and operate a railroad, with all necessary appendages, within limits embracing the locality now under consideration. In 1834 the Camden common council, by resolution, authorized that company to use Bridge avenue for the purposes of its roadway. In 1855 the legislature (P. L. of 1855 p. 118; Rev. p. 919 § 65) authorized railroad companies, whose incorporating acts limited the quantity of land which they might hold at their stations, to purchase and hold so much land as might be strictly necessary for most conveniently storing and working upon their engines, cars, fuel and materials to be used 'On their roads, and for receiving and delivering property transported on their roads to the best advantage, and for tracks, wagon-roads, platforms, and all other strictly station and railroad purposes. In 1862 the city council, by “ an ordinance to afford facilities to the Camden and Amboy Railroad Company for the running óf their trains through the city of Camden,” gave its consent and authority to the company to lay side tracks, running obliquely from a point on the railroad, along Bridge avenue, between Second and Third streets, to and upon the company’s depot property lying west of Second street. From these laws and regulations arise whatever rights the defendant, which is the lessee of the Camden and Amboy Railroad Company, appears to have in Bridge avenue, in front of complainants’ house. In our judgment, they indicate that those rights are such as pertain to the use of the avenue for the purposes of a way, not for the purposes of a station-yard. The primary privilege given is that of passage; this and its reasonable incidents cover the whole scope of the grant. The right of storing engines and ears, either for a longer or a shorter period, the right of making up or breaking up trains, are not embraced in such a concession. These are strictly station and terminal purposes, and by providing for station-yards the legislature has indicated its intention that business of that nature should be transacted there. We do not say that the company may not, under any circumstances, do upon its roadway what ought commonly to be done in its yards; for, no doubt, unforseen occurrences may some[329]*329times render such acts almost indispensable, and then other less urgent rights, of the public at least, must give way. But when, in the ordinary course of its business, the company devotes a portion of its roadway to station purposes, it goes beyond express legislative sanction, and can support itself, if at all, only as a private individual might. This is what the defendant did in Bridge avenue. Having a right of passage there, it used its tracks as though they were within its terminal yard, and so used them constantly in its every-day concerns. For this there is no legislative or municipal authority.
But, secondly, an act of the legislature cannot confer upon individuals or private corporations, acting primarily for their own profit, although for public benefit as well, any right to deprive persons of the ordinary enjoyment of their property, except upon condition that just compensation be first made to the owners. This principle rests upon the express terms of the constitution. In declaring that private property shall not be taken without recompense, that instrument secures to. owners, not only the possession of property, but also those rights which render possession valuable. Whether you flood the farmer’s fields so that they cannot be cultivated, or pollute the bleacher’s stream so that his fabrics are stained, or fill one’s dwelling with smells and noise so that it cannot be occupied in comfort, you equally take away the owner’s property. In neither instance has the owner any less of material things than he had before, but in each case the utility of his property has been impaired by a direct invasion of the bounds of his private dominion. This is the taking of his property in a constitutional sense; of course, mere statutory authority will not avail for such an interference with private property. This doctrine has been frequently enforced in our courts. In Trenton Water Power Co. v. Raff, 7 Vr. 335, Mr. Justice Depue said: “The destruction of private property, either total or partial, or the diminution of its value by an act of the government directly, and not merely incidentally affecting it, which deprives the owner of the ordinary use of it, is a taking within the meaning of the constitutional provision. * * * The injuries to which immunity from responsibility [330]*330.attaches are such only as arise incidentally from acts done under a valid act of the legislature, in the execution of a public trust for the public benefit, by persons acting with due skill and caution within the scope of their authority. If the injury be direct, or the work be done for the benefit of an individual or corporation, with private capital and for private emolument, the principle which absolves the parties from liability to action at the snit of persons injured does not apply, even though the public be incidentally benefitted by the improvement.” Pie cites several decisions in this state supporting the doctrine. In McAndrews v. Collerd, 13 Vr. 189, the chancellor declared, as the opinion of this court, that the proposition that the legislative authority to a private corporation or an individual to do a work for its or his own profit, includes authority to use, at whatever hazard to the persons or property of others, dangerous materials, provided they be necessary to the convenient prosecution of the work, cannot be sustained; that there is an obvious distinction between the liability of a private corporation to public prosecution for a legalized nuisance, and its liability to a private action for damages arising from such nuisance; that in the one case the legislative authority is a protection, and in the other it is not. To the same effect is the language of the supreme court of the United States in Baltimore and Potomac Railroad Co. v. Fifth Baptist Church, 108 U. S. 317: “The acts that a legislature may authorize, which, without such authorization, would constitute nuisances, are those which affect public highways or public streams, or matters in which the public have an interest, and over which the public have control. The legislative authority exempts only from liability to suits, civil or criminal, at the instance of the state; it does not affect any claim of a private citizen for damages for any special inconvenience and discomfort not experienced by the public at large.”
It must not be gathered from these propositions that all those inconveniences, which are the necessaiy concomitants of the location of railroads in populous neighborhoods, are to be considered civil injuries. That railways shall be so constructed and operated is required by the unanimous consent of the com[331]*331munity, and the annoyances thence unavoidably arising are not of sufficient importance to be regarded as invasions of those rights of property which society recognizes and protects. They must be classed rather among those limitations which the social state imposes upon the enjoyment of private, property for the common good. But if in any case these annoyances become so great as to destroy or substantially impair the legitimate use of private property, the person injured becomes entitled to redress. Even the common good must then yield to private right, unless compensation be made.
The decree and injunction below, following the prayer of the bill, are therefore, in the main, correct, but perhaps they may be interpreted ás going further than they should, in that they absolutely' forbid, under any circumstances, the use of defendant’s tracks in front of complainants’ premises for the purpose of distributing and shifting cars and making up trains, and putting and placing thereon cars laden with cattle, sheep and hogs. Such a use may, sometimes, in extraordinary emergencies, be unavoidable, and if it then should occasion a material injury to complainants, should be paid for in damages rather than be prohibited by injunction. The injunction should be against the use of those tracks, for the purposes indicated, in the transaction of the ordinary business of the defendant, leaving it at liberty to show, in response to any attempt to punish it for violation, that an occasional use was necessitated by an unforeseen contingency.
In order to make this modification, the decree below should be reversed, but' without costs to the appellant. The complainants should recover their costs in the court below.
Deoree imanimously reversed.