Lochrane, Chief Justice.
1. This case comes before the Court upon a bill of exceptions', filed by both the parties, to the judgment of the Court below. The authorities of the city of Augusta entered into a contract with these various roads by which they permitted them the use of a certain street, known as Washington street, in Augusta, to run their cars to carry freight and passengers through that city, along that street. Several of the property owners on the street brought suits at common law for dam[555]*555ages against the railroad companies. This bill was filed by the companies in the nature of a bill of peace, to bring all the parties into a Court of equity, and prays an injunction against them on the ground that they had no right of action, this permission having been first granted by the municipal authorities of the city, and afterwards ratified by the Legislature of the State; alleging that they were in the exercise of their legal rights, and such rights were not the subject-matter of a suit for damages, inasmuch as the Act of the Legislature ratifying the act of the authorities of the city of Augusta, in giving the railroads the right to this street, contained no provision for the assessment of damages for compensation. The Court maintained the bill and refused to dismiss it for want of equity, holding that it was in the nature of a bill of peace, and he could maintain jurisdiction in it.
The railroads excepted to his decision on the ground that he held a right of action accrued to those parties. The others excepted on the ground that he had fettered their legal rights with this illegal condition he had imposed upon them.
¥e hold, from the facts disclosed by this record, that equity may take jurisdiction, by bill in .the nature of a bill of peace, under section 3166 of the Code, and bring all the parties, plaintiffs and defendants, into the forum, and adjust their several rights by one decretal verdict; and the inquiry upon the trial of such case will not only cover past, but future damages, so as to estop all further or future litigation in or about the same subject-matter, and operate, upon compliance with such verdict, as a complete investiture of the legal rights, free from further claim of damage against the railroads in their use of Washington street, A.ugusta, for railroad purposes, within the legitimate scope of the legislative right granted to them.
2. The controlling question made by this record, and upon which all others hinge, is, whether the railroad companies are liable for damages to the holders of property along Washing[556]*556ton street, in the city of Augusta, by the use of the street by them for railroad purposes. This question is one of vital importance in its consequences, and in the adjudication of the principles involved in it. The previous decisions of this Court upon questions arising under the use of the street, by these railroad companies, relieves the question of many auxilliary subjects, and leaves it to be decided upon broad principles of law. The fee to the street in question is conceded to be in the State. That the city authorities of Augusta and the Legislature have granted this right to the railroad companies is equally admitted. That, by reason of such legislation, such use of the street is not a public nuisance has been determined by this Court. That the action of the Legislature makes no provision for compensation or assessment for damages, is a fact unquestioned.
And the case, therefore, presents itself upon a naked legal principle as to whatever the use of a public street in an incorporated city can be granted to railroads to run their cars over by steam power by the municipal authorities, and, when ratified by the Legislature, will such municipal and legislative permission prevent suits for damages against such roads by property holders abutting on said street.
And is the silence of such legislative act in regard to compensation a denial of the right to claim damages at common law ? The argument concedes that suit may be instituted for damages by the lot owners, if the use of the street by the railroads denies to such owners free ingress to and egress from their property over and upon such streets. But, it is contended with great ability, and upon a large array of authority, that, in the absence of all statutory provisions to that effect, no case, and certainly no principle, seems to justify the subjecting any person, natural or artificial, in the prudent pursuit of his own lawful business, to the payment of consequential damages to other persons in their property or business : Redfield on Railways, 291. And, in support of this proposition, eases are relied on decided by this Court: 28 Georgia Re[557]*557ports, 418, and 34 Georgia Reports, 327. The basis of these recognized principles is, that where property of the individual is not taken for the public use, the injury resulting from the legitimate exercise of a lawful employment, working injury, is damnum absque injuria.
If the property were taken, the right to compensation cannot be denied, for it is constitutionally guaranteed, and the Legislature limited in that respect. A very delicate question arises upon construction, as to whether there can be a taking within the constitutional inhibition of rights and easements, which are a part of the necessary use, to the full enjoyment of the property, without compensation. If the track lay upon an inch of ground belonging to another, it is so sacredly guarded that no power, State or national, could appropriate it. And yet, by the admission of the principle contended for, a man may be driven from his home and household gods. Trains, freighted and driven by steam, with gusts of thick smoke through his windows, and screaming along in front of his door, may affect his health and destroy his peaceful enjoyment of his property, and he is remediless. Are not these equivalent, in the construction of law, to a taking? Cooley, in his Constitutional Limitations, a work of great ability, and entitled, from its thorough analyzation of all the subjects upon which it treats, to great consideration, says: “Any injury to the property of an individual, which deprives the owner of the ordinary use of it, is equivalent to a taking, and entitles him to compensation:” C. C. L., 554; 14 Coms., 146. But the idea suggested is, that the Legislature must have provided for the compensation, fixed a rule of damages or mode of ascertainment. And, again, while the grant of the right by the Legislature prevents the act done from being regarded a nuisance, we are of opinion it is not a logical or legal consequence of such grant, that it may not inflict injury or damage. The admission of the one is not the necessary exclusion of the other. And we, therefore arrive at the conclusion that, when the State grants at [558]*558right, the use of which works an injury to another, and the law provides no mode of assessing compensation for such an injury, the right of suit for damages, if any can be proven, as we will hereafter discuss, is not taken away by such law.
3. Now, by contract, purchasers of property on Washington street acquired, by ownership, a right to the free use of it for all purposes, and it makes no difference where the fee to the highway resided. The use is the subject-matter of disturbance. It will not be doubted that a public street is for the use of the public, and all obstructions thereon are trespasses in law.
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Lochrane, Chief Justice.
1. This case comes before the Court upon a bill of exceptions', filed by both the parties, to the judgment of the Court below. The authorities of the city of Augusta entered into a contract with these various roads by which they permitted them the use of a certain street, known as Washington street, in Augusta, to run their cars to carry freight and passengers through that city, along that street. Several of the property owners on the street brought suits at common law for dam[555]*555ages against the railroad companies. This bill was filed by the companies in the nature of a bill of peace, to bring all the parties into a Court of equity, and prays an injunction against them on the ground that they had no right of action, this permission having been first granted by the municipal authorities of the city, and afterwards ratified by the Legislature of the State; alleging that they were in the exercise of their legal rights, and such rights were not the subject-matter of a suit for damages, inasmuch as the Act of the Legislature ratifying the act of the authorities of the city of Augusta, in giving the railroads the right to this street, contained no provision for the assessment of damages for compensation. The Court maintained the bill and refused to dismiss it for want of equity, holding that it was in the nature of a bill of peace, and he could maintain jurisdiction in it.
The railroads excepted to his decision on the ground that he held a right of action accrued to those parties. The others excepted on the ground that he had fettered their legal rights with this illegal condition he had imposed upon them.
¥e hold, from the facts disclosed by this record, that equity may take jurisdiction, by bill in .the nature of a bill of peace, under section 3166 of the Code, and bring all the parties, plaintiffs and defendants, into the forum, and adjust their several rights by one decretal verdict; and the inquiry upon the trial of such case will not only cover past, but future damages, so as to estop all further or future litigation in or about the same subject-matter, and operate, upon compliance with such verdict, as a complete investiture of the legal rights, free from further claim of damage against the railroads in their use of Washington street, A.ugusta, for railroad purposes, within the legitimate scope of the legislative right granted to them.
2. The controlling question made by this record, and upon which all others hinge, is, whether the railroad companies are liable for damages to the holders of property along Washing[556]*556ton street, in the city of Augusta, by the use of the street by them for railroad purposes. This question is one of vital importance in its consequences, and in the adjudication of the principles involved in it. The previous decisions of this Court upon questions arising under the use of the street, by these railroad companies, relieves the question of many auxilliary subjects, and leaves it to be decided upon broad principles of law. The fee to the street in question is conceded to be in the State. That the city authorities of Augusta and the Legislature have granted this right to the railroad companies is equally admitted. That, by reason of such legislation, such use of the street is not a public nuisance has been determined by this Court. That the action of the Legislature makes no provision for compensation or assessment for damages, is a fact unquestioned.
And the case, therefore, presents itself upon a naked legal principle as to whatever the use of a public street in an incorporated city can be granted to railroads to run their cars over by steam power by the municipal authorities, and, when ratified by the Legislature, will such municipal and legislative permission prevent suits for damages against such roads by property holders abutting on said street.
And is the silence of such legislative act in regard to compensation a denial of the right to claim damages at common law ? The argument concedes that suit may be instituted for damages by the lot owners, if the use of the street by the railroads denies to such owners free ingress to and egress from their property over and upon such streets. But, it is contended with great ability, and upon a large array of authority, that, in the absence of all statutory provisions to that effect, no case, and certainly no principle, seems to justify the subjecting any person, natural or artificial, in the prudent pursuit of his own lawful business, to the payment of consequential damages to other persons in their property or business : Redfield on Railways, 291. And, in support of this proposition, eases are relied on decided by this Court: 28 Georgia Re[557]*557ports, 418, and 34 Georgia Reports, 327. The basis of these recognized principles is, that where property of the individual is not taken for the public use, the injury resulting from the legitimate exercise of a lawful employment, working injury, is damnum absque injuria.
If the property were taken, the right to compensation cannot be denied, for it is constitutionally guaranteed, and the Legislature limited in that respect. A very delicate question arises upon construction, as to whether there can be a taking within the constitutional inhibition of rights and easements, which are a part of the necessary use, to the full enjoyment of the property, without compensation. If the track lay upon an inch of ground belonging to another, it is so sacredly guarded that no power, State or national, could appropriate it. And yet, by the admission of the principle contended for, a man may be driven from his home and household gods. Trains, freighted and driven by steam, with gusts of thick smoke through his windows, and screaming along in front of his door, may affect his health and destroy his peaceful enjoyment of his property, and he is remediless. Are not these equivalent, in the construction of law, to a taking? Cooley, in his Constitutional Limitations, a work of great ability, and entitled, from its thorough analyzation of all the subjects upon which it treats, to great consideration, says: “Any injury to the property of an individual, which deprives the owner of the ordinary use of it, is equivalent to a taking, and entitles him to compensation:” C. C. L., 554; 14 Coms., 146. But the idea suggested is, that the Legislature must have provided for the compensation, fixed a rule of damages or mode of ascertainment. And, again, while the grant of the right by the Legislature prevents the act done from being regarded a nuisance, we are of opinion it is not a logical or legal consequence of such grant, that it may not inflict injury or damage. The admission of the one is not the necessary exclusion of the other. And we, therefore arrive at the conclusion that, when the State grants at [558]*558right, the use of which works an injury to another, and the law provides no mode of assessing compensation for such an injury, the right of suit for damages, if any can be proven, as we will hereafter discuss, is not taken away by such law.
3. Now, by contract, purchasers of property on Washington street acquired, by ownership, a right to the free use of it for all purposes, and it makes no difference where the fee to the highway resided. The use is the subject-matter of disturbance. It will not be doubted that a public street is for the use of the public, and all obstructions thereon are trespasses in law. And in these days of progressive improvements, we admit the legality for public use of such streets, by laying an iron bar upon them, to facilitate conveyance, by permitting cars to run over them. The enlightened opinion of the world recognizes this appropriate use; and we indorse the authorities of Judges and publicists on this subject. We need not pause to notice the growing tendency of Courts to shield corporations from all prejudiced assaults through the forms of law. Monopolies are evidences of civilization, and invoke no captious criticism at my hands.
But, after a careful review of the authorities presented, I am not satisfied that the use of a public street in a city by steam power, is within the legitimate use of such street. I think the streets may be used, and bars laid upon them, and cars drawn over them by horses; but there is something in a locomotive power, in throwing smoke into the houses along the street, its tremendous weight shaking the houses and breaking plastering and walls ; and in the noise and screaching of whistles, which, in the machinery employed, may make it the subject-matter of injury, which the horse-car, slowly driving along, would not occasion. It is not in the use of the street for cars, but in the mode of use. And, as an original proposition, I gravely doubt the right of any power to take a street, dedicated to public use for the citizens, and convert it into a railroad track, without the consent of the property holders thereon, where it comes as an obstacle [559]*559to a great thoroughfare, and the law provides (no) compensation. The right of eminent domain may be exercised over houses or streets, but the Legislature of Georgia, in the grant of charters, never contemplated arbitrary going through towns upon the part of railroads.
Nor can it be said that the citizen who buys property with knowledge, and by right, cannot complain of the use of the street upon which it lies for any public purpose, if, by such knowledge, he is to be held as understanding the power to make a railroad track of the street is contemplated. Such is not ordinary ; and when it is done by the Legislature, I am of opinion he has the right of suit left; that he is not shorn of his right to complain and present his case to the Court and country.
But, on the trial, the most difficult question still remains to be disposed of — as to what elements of damage may be given in evidence.
From the view I entertain on the subject, I am satisfied that the rule ought to embrace the actual damage sustained from obstruction to the free ingress and egress, and access over and upon the streets. Inasmuch as the law has allowed the use of the streets by steam-cars, the passage over the street would not be, in itself; an obstruction, while reasonably exercised. And the laying of the iron upon the street, though it may create a jolt in crossing, would not be an element of damage; for it lies there by direction of the law. Nor would the apprehension of safety to children going out upon the street, nor the possibility of sickness in families, or any fanciful or speculative disturbance constitute an element. The damage which the law recognizes must be actual, something tangible and determinable; and to arrive at this the occupation of the parties by which losses in scholars, or in trade, or the like, have been occasioned, would not be legitimate ; but the actual depreciation of the value of property would be proper, and this depreciation, not only from questions of access upon the street, but the noise, smoke, shaking [560]*560of walls or plastering, and the like, which can be traced as effect to cause. In cases of this kind damages are not given for feelings of parties, or the fact that carriages might be injured by runaway horses, or that visitors are prevented from coming to the house, but must rest upon some solid, tangible injury; all consideration of sentimental injuries must be kept away in evidence and in argument frota the jury.
We, therefore, affirm the judgment of the Court below, so far as he held jurisdiction in equity over the parties and subject-matter and enjoined the suit at law, reversing the condition required to be filed in writing, and give direction to the trial covering all the equities and rights of parties, and settling by one verdict and apportioning the damages found, if any, among the various roads, and the past and prospective claims of damage to be settled, and the roads have, from compliance with such verdict, future indemnity.
Judgment affirmed, except as to the condition therein stated; as to that, reversed.