Robb v. Carnegie Bros.

22 A. 649, 145 Pa. 324, 1891 Pa. LEXIS 671

• Court: Pennsylvania Court of Common Pleas, Westmoreland County
• Decided: October 5, 1891
• Docket: No. 191
• Status: Published

Opinion

Opinion,

Mr. Justice Williams :

This case was tried with considerable care in the court below, and was in most respects well tried. Some questions, however, were raised and considered on the trial which were not necessarily involved, and which hindered, rather than helped the court and jury in reaching a correct result. For this reason, and because the case as it is presented is one of considerable' general importance, it seems desirable that the position of the parties, and the principles by which their relative rights are to be adjusted, should be briefly considered. This may be done by answering the following questions :

1. Has the plaintiff shown a cause of action for which he can recover in a court of law ?

2. If he has, what is the measure of his damages ?

3. Was the evidence, which was admitted under objection, relevant to the issue before the jury ?

The plaintiff shows that prior to 1871 he was the owner of a farm in Westmoreland county on the uplands north of Brush creek. His cultivated fields began about one thousand feet from, and about three hundred feet above the stream, and extended back to and beyond his dwelling and farm buildings, which were about one half mile from the stream. He shows that in 1871 the defendants bought a tract of land in the valley, and extending up the slope some three or four hundred feet, on which they erected coke ovens on the flat on the north side of the creek. He alleges that the smoke and gas from these ovens passed over his farm, injuring thereby his crops, diminishing the productiveness of the soil, and the desirability of his house as a place of residence. Evidence was given on the trial in support of this allegation. The defendants deny that the plaintiff has suffered injury in his crops, his soil, or the comfort of his home; and they further deny that the injuries alleged, if actually sustained, would entitle the plaintiff to recover, and for this they give the following reasons : (a) Such injuries are the natural and necessary result of the development by the owner of the resources of his own land, as in Penna. Coal Co. v. Sanderson, 113 Pa. 126 ; (5) they result from a reasonable use of bis own land for a lawful purpose, as in Huckenstine’s App., 70 Pa. 102 ; (e) they result from the pursuit of a lawful calling, in a lawful manner, without either negligence or malice on the part of the owner or his employees, as in Penna. R. Co. v. Lippincott, 116 Pa. 472.

In Sanderson’s case the land of the coal company was coal land. Its value could be realized by the owners in no other way than by bringing the coal to the surface, so that it could be prepared for the market. In the process of mining, subterranean veins of water are necessarily opened, and the water accumulating in the mines must be brought to the surface, where it naturally finds its way into the surface streams, and pollutes them. If this could not be done, a great industry would be interfered with, and the owner of the coal land denied the exercise of the rights of ownership on his land, for the benefit of a neighboring owner whose title was no greater or higher than his own. The maxim, sic utere tuo ut alienum non laedas, was therefore neither suspended'nor modified in Sanderson’s case. The coal company was using its own land in the only manner practicable to ■ it. The harm done thereby to others was the least in amount consistent with the natural and lawful use of its own. If this use was to be denied to the coal company, because some injury or inconvenience to others was unavoidable, then the result would be practical confiscation of the coal lands for the benefit of householders living on lower ground. But the defendants are not developing the minerals in their land, "or cultivating its surface. They have erected coke ovens upon it, and are engaged in the manufacture of coke. Their selection of this site, rather than some other, is due to its location and to their convenience, and has no relation to the character of the soil, or to the presence or absence of underlying minerals. The selection was no doubt a wise one, quite secluded, and quite convenient to the several mines from which the material was to be obtained for the making of coke; but it was the selection of a manufacturing site, and is subject to the same considerations as though glass, or lumber, or iron had been -fche commodity to be produced, instead of coke. The rule in Sanderson’s case has therefore no application to the facts of this case. The injury, if any, resulting from the manufacture of coke at this site, is in no sense the natural and necessary consequence of the exercise of the legal right of the owner to develop the resources of his property, but is the consequence of his election to devote his land to the establishment of a particular sort of manufacturing, having no natural connection with the soil or the subjacent strata.

The rule in Huckenstine’s Appeal is equally inapplicable. The land of the appellant in that case had upon it a deposit of fine brick clay, which could be made into bricks with profit, if this was done near the pit from which the clay was taken. This is the usual, and probably a necessary way of converting the clay into bricks. An effort was made to enjoin against the burning of the bricks by Huckenstine on the field where the clay was obtained. The injunction was refused, and it was held that, upon the case as presented, Huckenstine was making a reasonable use of his own land, which equity would not interfere with. Whether he would have been liable in an action at law for any substantial injury he might do to a neighbor by the burning of bricks, was not before the court, and was not considered. We think it is true, as held by the judge of the court below, that the evidence in this case would not justify an injunction. It shows a selection of a site as well adapted to the business, and as remote from dwellings as any in that region. To enjoin the manufacture of coke, at such a site, would amount tó a prohibition of its manufacture, and the destruction of vast allied and dependent industries of immense value to the public as well as to those directly engaged in them. An injunction is not of right, but of grace, and will never be issued by a court of equity when it will inflict a greater injury than it will prevent. In such a case, the injured party will be left to his redress at law. No more than this is fairly covered by Huckenstine’s case. The plaintiff in this case is therefore in the right court, and if he is substantially hurt by the use to which the defendants have seen fit to devote their land, we see no reason why he may not recover, unless it is found in the last of the positions taken by the defendants, for which Lippincott’s case, is cited.

It is a fundamental principle of our system of government that the interest of the public is higher than that of the individual, so that when these interests are in conflict the latter must give way. If the individual is thereby deprived of his property without fault on his part, he is entitled to compensation ; but if he is affected only in his tastes, his personal comfort, or pleasure, or preferences, these he must surrender for the comfort and preferences of the many. Thus, highways are necessary to the public business and comfort. Some noise and dust are necessarily occasioned by the legitimate use of them. This may be disagreeable, perhaps in some cases positively harmful, to some one or more of the persons living along them ; but for this there is no remedy, at law or in equity. It is one of the necessary consequences of subjecting the individual to the public, in those things as to which their interests are in conflict. Railroads have become the great highways of travel and commerce. The turnpike and canal have been superseded, and the people and their products are transported at a great advance in speed and comfort over the modern highway, by the power of steam. The law recognizes the public character of these highways. Their presence is necessary to the prosperity and comfort of the public. To some persons who live near them, as to some persons who live upon a busy city street, the incessant roar of business and the dust of passing vehicles or trains may be unpleasant or painful; but, whether such persons live upon a country road, a paved street, or a railroad, they are alike remediless. No action will lie against the municipality, the turnpike, or the railroad company for the noise and dust caused by the legitimate use or operation of the highway in either case. For negligence or malice the wrongdoer is liable to the party injured, but for the lawful use of the road, in the customary manner, no liability attaches to the traveler or owner. The railroads are built, as is the turnpike or the street, under laws regulating their construction and use in the interest of the public which is to be served by them. The right to operate railroads is a necessary incident to the right to build them, and this was held in Lippincott’s case. But the production of iron, or steel, or glass, or coke, while of great public importance, stands on no different ground from any other branch of manufacturing, or from the cultivation of agricultural products. They are needed for use and consumption by the public, but they are the results of private enterprise, conducted for private profit and under the absolute control of the producer. He may increase his business at will, or diminish it. He may transfer it to another person, or place, or state, or abandon it. He may sell to whom he pleases, at such price as he pleases, or he may hoard his productions, and refuse to sell to any person or at any price. He is serving himself in his own way, and has no right to claim exemption from the natural consequences of his own act. The interests in conflict in this case are therefore, not those of the public and of an individual, but those of two private owners who stand on equal ground as engaged in their own private business. Lippineott’s case is therefore no reply to the plaintiff’s case.

What, then, is the measure of damages ? The declaration charges an injury to the trees and crops growing on the surface, and a permanent injury to the soil, by the deposit upon it from the passing smoke and gas of sterilizing and poisonous substances. To the first of these the statute of limitations was properly applied. During two of the six years open to inquiry the farm was in the possession of a tenant who paid what is admitted to have been a full rent for it. The crops for those two years should therefore be excluded from consideration. As to the remaining four years, if the crops were so affected as to reduce their quantity or value, the shrinkage upon each year’s crops should be shown in bushels or tons, or approximated as nearly as possible. For, the acreage in wheat or corn in any one of these four years, for example, being shown, and the yield per acre, a comparison of the crop with that raised on the same farm before the ovens were built could be made, and, so far as the difference was shown to he due to the smoke or gas, it would afford some basis for an estimate of the damage sustained on that year’s crops. In this manner the actual injury to the crops, if any, could be gotten at pretty nearly. As to a permanent injury to the soil by the deposit of injurious particles upon it, a chemical analysis will afford the only safe guide. Differences in the amount of the crop might be due to the effect of the smoke on the growing plant, to negligent tillage, to exhaustion of the soil by long cropping, or to many other causes; but if, as some of the witnesses have testified, a crust of foreign and sterilizing substances has been deposited over this farm varying from a quarter to a third of an inch in thickness, specimens of it can and should be produced, and its composition and the effect of its presence ascertained and explained to the jury by those competent to speak on the subject. This is a question susceptible of a clear and satisfactory solution by the application of scientific tests which the court and jury should have the benefit of. If the result is to show a permanent injury to the soil which impairs its productiveness to an appreciable degree, the extent of the loss in the value of the farm can be readily computed. If such permanent impairment is not made to appear, this part of the plaintiff’s claim should be rejected altogether. The fact that the plaintiff may regard his home as less desirable than before, because of the proximity of an undesirable business or of undesirable neighbors, or the further fact that its selling value has been reduced by reason of such proximity, affords no ground for a recovery. The location of a livery stable, a restaurant, a distillery, and many other kinds of business close to one’s home might diminish its comfort and its market value, but the owner would be without legal redress, so far as the effect of mere proximity is concerned. If, however, the business was so conducted as to affect the use of adjoining property or the health of its occupants, these tangible and substantial injuries capable of measurement by a pecuniary standard might sustain an action for damages.

The ordinary rule for the ascertainment of damages, where land has been entered and appropriated under the right of eminent domain, does not furnish a measure of the plaintiff’s right to recover in this case, for the reasons airead}*- given. Where an entry and seizure have been made, the effect of the seizure and appropriation of part of the land of the owner to a particular use is to be considered, as well as the value of what is taken. This can be best adjusted by ascertaining the selling value of the whole property before the entry, and after it has been made. The difference, if any, shows the actual loss which the owner has suffered. But, in this case, there has been no entry upon or appropriation of the plaintiff’s land. What he alleges is that the prosecution of the business qf making coke by the defendants on their own land has hurt his crops and injured his soil. They have the right to make coke. If the establishment of that business near the plaintiff affects the selling value of his farm, he can no more recover for that than he could recover against the saloon-keeper or the liveryman because the location of their business near hiiq had made his property unsalable. The nature of the business is therefore to be left out of view. The sole question is, what harm has been done to the 'plaintiff bjq or as the direct result of the prosecution of the defendants’ business at a place where they had a legal right to carry it on ? The plaintiff might honestly think, and his neighbors might be willing to testify, that the mere location of the ovens'on adjoining land reduced the value of his farm thirty or fifty per cent or more, and a comparison by them of the value before and after the building of these ovens would include this element, for which there can be no recovery.

What has been now said substantially disposes of our question relating to the testimony objected to. The second assignment of error is sustained. The question objected to should have been excluded because it called for no fact, but for a lumping estimate which opened the way for the witness to introduce considerations that we have seen had no place in the adjustment of the damages. The question referred to in the third assignment should have been excluded for reasons already given. The seventh assignment is also sustained. It was of no sort of consequence where the defendants obtained the material which they used in making coke, or what price they paid for it, or what the miners who brought it to the surface were paid for mining it, and such questions should have been excluded. The ninth assignment must also be sustained. The question was, not what purposes the plaintiff might have devoted his farm to, and what damages he would have sustained in that case, but to what purposes had he devoted it, and to what extent had he been interfered with by the defendants’ business. An examination of the evidence shows that the plaintiff purchased his farm, containing eighty-two acres, for four thousand dollars, a few years before the ovens were built. Several years after they were built he bought twenty acres adjoining, which contained coal which he mined and sold to the employees of the defendants. So far as the evidence indicates, the latter piece was not farmed, but kept and used for mining coal. For the injury to four years’ crops, and for permanent injury to his soil, the plaintiff recovered nearly one thousand dollars more than his farm proper cost him, and still finds it to his advantage to reside upon it and to cultivate it. The fact that such a verdict was rendered shows that the court and jury must have been misled to some extent by the irrelevant testimony, and by the improper measure of damages which the jury was thus left to apply.

It only remains to consider briefly the twelfth assignment of error. The learned judge said to the jury :

“ After much thought, we have arrived at these conclusions: (1) That the owners of coal lands may develop and operate the same, even to the injury of adjoining landowners, without remedy on the part of the latter, unless malice or negligence be shown. (2) That a court of equity will not restrain the operation of works of an injurious nature where the best possible place to do the least injury to others has been selected. (8) That, while equity will not restrain, law will give a remedy where actual, positive, serious injury has been done to another, by bringing upon adjacent land and manufacturing material not part of the land, whether such harm be done to health or property.”

We cannot see that the appellants were hurt by this instruction. The first proposition is no more than a statement of the rule which was held in Sanderson’s case. The second is all that the appellants could ask, and, as a general rule, is well settled. If there is any error in the third, it is in the concession that the mine owner is under less obligation to his neighbors when he makes coke upon the tract from which the coal is mined, than when he makes it elsewhere. If this concession was mistaken, as perhaps it was, it did not lay any burden on the appellants, and they have no right to complain of it. Whether one who mines coal, or petroleum, or lead on his own land, has, by virtue of that fact alone, a right to manufacture or refine such product on the tract from which it was obtained, under circumstances which would prevent its manufacture, or render him liable for damages if he manufactured on some other tract, is a question not raised by the facts of this case. If the relation of the miner to his product, or the surface to the underlying minerals, could confer exemption from liability for the consequences of the manufacture of the material mined, where the process was conducted on the same tract, the defendants were not within the range of such exemption. They did not mine the coal they used. It w'as not mined on the land upon which the coke ovens stood. They were therefore under the general rule, and not within the exemption, if such exemption really exists. At the same time, the location of these parties and the industries of the region are not to be lost sight of. The plaintiff’s farm is in a region in which bituminous coal is obtained in large quantities. He himself mines coal upon his own land for sale. The conversion of coal into coke, to supply fuel for the great iron and steel mills of western Pennsylvania, is one of the great industries of the region. Many millions of money are invested in, and many thousands of men are employed about its production. It has been largely1' instrumental in the development, growth, and general prosperity of the region. The plaintiff shares the general benefits, and seems to possess some advantages that are special, and grow directly out of the establishment of these works near him; for he has been thereby provided with customers for his coal- and his farm products at his own door. These considerations should be borne in mind in adjusting the damages, if any have been sustained; so that the plaintiff, while he recovers for his actual loss in the products of his farm or the destruction of his soil, as the evidence may show the facts to be, shall not be allowed exemplary damages; and so that the defendants shall not be treated as wrongdoers in the establishment of their plant on a well-selected and secluded tract of land belonging to themselves.

As this ease goes back for a new trial, it is quite proper for us to add that the trial judge is, in an important sense, the thirteenth juror; and when the amount of the verdict shows that it must have been arrived at by the adoption of an erroneous measure of damages or a mistake in computation, he should not hesitate to set it aside.

The judgment is reversed, and a venire facias de novo awarded.