CUMBERLAND TELEPHONE &: TEL. CO. ".UNITED ELECTRIC RY. CO.
TELEGRAPH CO. CO. et al.
(Oircuit Oourt, M. D. Tennessee. :May 19, 1890.)
In the present state of electrical science, a telephone company cannot maintain a'bill for an injunction against the operation of an electric railway to prevent damagesincldentally sustained by the escape of electricity from it. rails. '
b1I the Ooun.)
InEquity. On motion for an injunction. This Was a bill in equity ,to enjoin the use of electricity by the street railways of Nashville under any system which makes lise of the earth for its ret'urn:circl1it. The complainant is a KeFltucky corporation "empow· · ered" by its charter "to construct and operate lines of telephone." It entered the state of Tennessee, claiming a right under section 1535' of the state Code, which provides that "any person or company may con· Btruct at.el£graph line along the public highways and streets of this state, or acrOSs the rivers, or' over any lands belonging to the state, free of charge, andover the lands of private individuals as hereinafter pro· vided; and may erect the necessary fixtures therefor. "The city of Nttsh· ville gave its consent to tM use of its streets by an ordinance passed in 1879, and in that year complainant established a telephone plant, which it has continued to enlarge and improve to the present time. In 1885 an act was passed by the legislature of Tennessee authorizing both foreign and domestic corporations to "construct, operate, and maintain such tele. graph,tIkphone, or other lines necessary for the speedy transmission of intelligence,along and over the public highways and streets of the cities and towns of this state: * * * provided, that the ordinary use · of such public highways and streets * * * be not thereby ob· struoted," etc. In 1888 the city passed another ordinance,.confirming complainant's 'rights to the streets and alleys, as then established, ,and gra.nting the further right to extend its plant as public needs might ra. quire. Under these provisions, complainant built and operated its lines of telephohe through the streets of Nashville, now having in use about 1,400 telephones, and 1j300 miles of wire. Defendants. are five street railways, .all now operated by electricity, under the Sprague and Thompson-Houston systems, and using a single trolley or .overhead· wire. Three of these roads were originally illcorpa. rated by special acts authorizing them to operate street railways by horse· power. By an act approved March 21, 1887, amending the general incorporation laws, all street railways thereafter organized under the gen· erallaws of the state were authorized to propel their cars by electricity. Two of these railways were organized under the general incorporation · laws. By another act; approved February 28, 1889, all street railway which before that time had operated ca.rs by animal power . were empowered to operate the same by electricity, provided the .city v
Acting under this supposed authority, one of the deYe.\'o9I;lCom,paJ;ly, equip a portion of its road with electricity.), .' . Thereupon, and on April 17, 1889, complainant filed its bill in the chancery cause was heard, the parties entered into an agreement by which the telephone company agreed to dismiss its bill, to ele\'8>te ,all its wires which might interfere with the r9ad', f1'om coming III .with-the. trolley wires of the road, anilnot tolllterfere further with the operation of the road;_ the railroad company agreeing, upon its part, to construct at its own expense a return metallic circuit, for the use of the telephone company, w1)enever it isltScertaJ.ned that its service injured ,by the railway company,and te .the telepb,:me wires from com.ing. with, if$ owu }Vires. '; 1890. a similar plan.t! ,mape the telephone Qoippany and t4e City Electric ;Railwlf,Y. :wIth a, provisothaUft>uponJl fair trial, the return wire shopld 1;1ot ,telephone cqmpallY. irQm the parties ,pe.t;ex;nitted, without Pl'ejuqipe,:to their legal rights and remedies as:they:eliisted.. beforec'he agremn.ent was made.; thll.t the had, not given ,the relief o\Uld. that COm· e!;ltopped by of the bill ,w1;lich ie sQpposelltoretum to the dynamos by irollJ:aUs , I'cattElra thl'Oij.gh:the earth., -and. is· thereby conto. :wines of, the tbroughvarious !!gencies, over· ]qlOWiIl;Il5,Hc9D;ductiou" or ·of thc, telephone,. p;r;od:ucipg 10udJ.buzzing ipr interferiJilg with; teh;phonic upon the ,cpmmunication. Besides, bells .of:lmbsQriberswhen there is no mill from the ,centr/liloffice, ,causing nutnber of thelU1lnunciato.rs at the them to Jling,and also causing a exchangl:), W dallat ope' time,: so that the operat(J)rs, ¢annot tEfll VI' ho, .if · llill1y ... TAat,if the c.urrents used cars constant itwauld,uotipt¢J:ferewith th telephones. Itfurther \ a,verre¢l,tl!l\Hheservige.wall interfered with by i'l'l duction, where a varying of. ,eleGtricity, oonveyed on a conducting-w,ire, will produce in a parallel wire other currents ofe!ectri(lity. The .varying current upon troUeyli,Peinduces·f.l; like :cur.ren,t ,in: the parallel telephone wir.es on .street, l\ud also, as in of conp\ilction, produGes the ,noiseaandsounds,.and):'ings the: bells, of and throws down trolley was dauthe annun,ciators.Thehill.also cbargeq.tbat ::g.erous to Jifel»J,q.property. If, by ,winds andstorws, a telephQaewire ,aUftfll<ll across· ·the. trolley" it, might, :De fatal to man, or topeh it, anct' da1lgerous td the. lives QC thoSie in: the telephone · <lausing fire .h(HISes. 9f!sp,bscribers. ['he .1?m all, these· troublesand,.dangers, would be avoided if "defepdantl'l rwollidusean entire metallic 'Circuit,()r dOu!ble trolley, prop!;lnd that :tbe same result would. follow if complainant
gave its assent.
CUMBERLAND TELEPHdNE &TlilL. CO. 17. eNITED,ELECTRIC RY. CO.
would use a complete metallic circuit everyone of its subscribers; but the latter would nearly double the cost of the plant, and grave culties would be encountered at the central office, which it was not certain could be successfully o,vercome. On the contrary, the single trolley could be oonvertedinto a double trolley at a comparatively small expense. Tllltt, in consequence of these interferences, subscribers' make constant complaints, many threaten to, and some actually do, refuse to pay for their telephones. The answer did not make an essentially different case, but averred that in February, 1889, all the,defendants Iwere sold to the United Electric Railway; that each company had sold its mules, and changed its stabling to an electric car plant; that the entire system furnishes transportation to 15,000 persons per day. ltdenied that the metallic return wire has failed to protect the telephone, and averred that little or no trouble was experienced on the route so protected. It further alleged that, ofthe four methods of equipping electric railways,viz., storage batteries,the conduit system, double trolley overhead, and single trolley overhead, all have substantially proved to be failures, except the last. It denied that the complainant was entitled to a monopoly of the earth for its return circuit, and insisted that it should make use either of a completeilletallic circuit, or of a device known as the "McCluer Device" for its return circuit. ' Vertre88 &: Thos. H. Malone, for complainant. East&: Fogg, J. O.Bradjord, Jolvn S. Wise, and JolvnRuhm, for defendants.
BRbWN,' J. We do not care, in this case,to discuss the constitntionality of the act bf1885, or the present obligation or effect of the contract entered into between the complainant and two of the defendant rnilwar.companies, under which the .latter agreed furnish turn WIres to the telephone company 10 order to obVIate the dIfficultIes e1Cperienced by the escape of electricity frolll their rails. We prefer to assUme that 'both these parties are lawfully exercising their franchises, and to consider their respective rights and obligations unembarrassed by any previous contractS' or understandings. We see no reason to doubt the position assumed by the complainant, that a telephone company isa telegraph company, and that, under its right to construct and operate telegraphs, it was empowered to establish a telephone service. Attorney Generalv. Telephone Co., 6 Q. B. Div.244;TelephoneCo. v· .O ityoj Oahkosh, 62 Wis. 32, 21 N. W. Rep. 828. Complainant, ·in operating its instruments, connects each telephone wire,"through which the with the ground by what'is termed a return current of electricity is carried to·the earth, and perhaps through the earth, acting'as: a conductor, hack toAhe telephone exchange. Such return; in some .form or other, is necessary,to the production of a current of electricity in every ease. Defendants, upon the other hand, use a single overhead wire or ttoUey, suspended over the llliddle of the tJ;ack, along which ,theeleotric curreiit pasSes;descending by the trolley rod or
through the cars to the motors underneath, and thence. to the rails, which are connected together at their ends, and which operate to convey the return current back to the dynamos at the power-house. The evidence, however, establishes the fact that the eurrent does not all return by the rails. Much of it escapes; becomes scattered through the earth, ascends through the ground wires to the telephones, and seriously impairs their operation, by causing a humming or buzzing noise. which drowns the voice of the speaker, and often causes the annunciators in the exchange to fall, and the bells to give false calls t so that it is im possible for the operators to tell which, irany, of its subscri,bers have called, and. in short, throws the whole system into confusion. That these evils exist, to the serious detriment of the telephone service,.is not denied; but it also appear.s from the evidence upon both sides that they are not absolutely insurmountable. Indeed, there are but few seriotis questions of faot in this case,and these turn upon the relative practicabiHty and expense of the several: methods of overcoming this diffi. In solving these questions, weare (\ompell!)d to bear in mind the fact that the science of electricity is still in its experimental stage; thata ·device which tQ-day may be the best. cheapest, and most practiicable;·.,m'ay, in another year, besupersCilded by something inpomparably better fitted forthe purpose. Itis:quite possible. too, that the legal ob. ligations of the parties may change with the progress of invention, and the duty of surmounting the difficulty be thrown upon one party or the other, :as a cheaper or more effectual remedy is ;For example, if it were shown that by the use of It certain device the defenqants could control their return current in such a way as not to interfere with the;use >of complainant's, instrumentS, ,the law might treat their failure tn.adopt.such measures as negligenoe in the use of their franchise, and .emj.oin them, or hold them liable fOr all qamages by the If, upon .tre other hand, the diffiq\llty CEln be better trolled, bya device to it mightbein91.1mbent upon the complainant to adopt.it, leaving the courts to settle ,the further tion, whether the expense of so doing is recoverable of We arethusoompelled to consider case with ,referepce to the sta.te"orltheart, and with the possibility, .that in anotper year stances. may so change .as to reverse completelythe legal.obligations 9f the .parties,. ,Indeed, since the litigation between. tpp" telephone panies anaHheelectric railway companies origimillybegan, considerable progress'has been made towards a sOlution.of the problem. L!:\t us sider the respective methods now suggested: . 1. ,The double trolley. There seems to be no doubt. that if defendants adopt a second trolley wire, the return current might be carried back to the dynamos without coming in contact wjth.the, earth at all, and the difficulty be completely overcome.. Upon, the other hand. we are satisfied frOni the affidavits that this would not. only ent\lil .a large expense upon the defendantf:!,but. that.it disfigures the streets with a. complicated net-work of ;wires, and, wherever. there are curves,turn-outs, road very diffi/?ultof operation. There ,are t",o or switqhes,'
CUMBERLAND TELEPHONE & 'rEL. CO. 11. UNITED ELECTRIC RY. CO.
of these double trolley road!! in operation in Cincinnati; and they are used to a limited extent in other cities. But the facts that nine-tenths of the electric railways ill' this country are equipped with a single trolley, and that, in most of the cities where the double trolley was formerly used, including Montgomery, Pittsburgh, Denver, Albany, and Appleton, they have been abandoned, are strong arguments against their practicability. Indeed, it .is only where the roads make use of a double track that the double trolley can be made a success. Add to this that, in the numerous cases between the telephone companies and the electric railways which have arisen in other states, the courts have uniformly held the double trolley to be a failure as applied to single tracks, and it would seem that the question could no longer be considered an open one. 2. There seems to be no doubtthat the evil may also be remedied by a return wire attached to each telephone,by which the current is carried direytly back to the excpange, instead .of being dumped into the earth. Thi!'l, however, is open to the same objection as the double trolll;lY. It is not only very expensive, dOl,lbling the cost of the electric plant,but would double the numbl;lr of wires carried 'through our streets, already far too numerous £9r comfort, beauty, or safety. In addition to this, it involves a large outlay and increased complication and expense for the central officel there being not only two line wire terminals to provideforevery subscriber, but fourtertninals to handle for every connection, instead of two,as with the single wire and. earth systems. Up.on the whole, we deem this to be impracticable. 3. A third device, known as the "McCluer System," remains to be .considered. This contemplates the employment of a single return wire tlpOn each route disturl;>ed by the railway service, to which each telephone UPOI1 that route is connected. and ,which operates to complete the metaU\ccircuit. If weare to believe. the affidavits of those who a're familiar with this it affords a perfect remedy for all disturb.. produced by leakage or cooduction, though there are also; slight disturbances produced by induction from parallel wires, from which no .complete.relief has been discovered by any kind of metallic circuit,un. lesssupphimented by the'l,lse of non.inductingcables, 'and the transpo.sition of wires. This evil, however, is remediable by increasing the .distance between the parallel wires, and does not seem to be .as .a serious. matter. It. is true, defendants have produced affidavits which tend to throw SOme doubt upon the utility of the McCluer: device, but this doubt seemS to have arisen more from the reluctance of tpe telepbonf} companies to adopt it than from any proven insufficiency. We tliink we .are justified in assuming that the adoption of this device by: the complainant would obviate the disturbances now produced by leakage. The' case, then, practicallyresolv.es itself into the question, at whose expense shall this change .be. made? As the testimony tends to show that the introduction of the McCluer device into tbetelephone service .of Nashville.wonld not cost to exceed $10 to each telephone, the qucs-
tion il!llDot vital to tlf either of these companies. At the snmetitl1ei" ,as it isorre thaJconfronts the telephone and' electric railways in every city Mthecountry where both are used, it importance. Are the telephone con'lpanies,which have'the prior right to use the streets:, bound to dmform·their business to the demands' of tlnese,:new-comers, though by SO doing they put themselves to large eXpenSe?}' Or are the railway companies bound; aS!l condi,tion of occupying the same territory, to see to it that, in operating their roads, no incideIltll.l damage is dOl'iato their neigh bors? If the existence of one waR the,con'tinuedoperation of the other, it might:beillCumbent upon us to make'achdice between these two great benefaetipns,'both of whiehwill rank among the necessities of modern urban liife.' ,But, as we are, bound toa,ssume that they can be persuaded to live 'together in harmony, the case'virtually resolves itself into a question oNiability for certain -damages Sllstftfined by the' complainant; In is open' to serious doubt, Whel1her it is' entitled to invoke the aid ofa cdurt of equity a.tnlI., Conceding that the case made by the biIlis'one'ofequitable jurisdiction, stil1'tbe granting or withholding of an injunction is largely a matter of discretion; and if, upon all the pleadingsiand the testimony, the court' can see that it involves a mere question of dollars and cents, it may· well hesitate to stop the operation of the$8,roads by resorting to an injunction, especially in.;view, of: thefact'that detendants' are amply able to make reparation. We do not desire,howElver, to dispose Of the case upon this ground ·. :i; , ' It,wooMbe perfectly competent for uUo stay the issue of an injunction, ashas'ialready been done in one cir two cases, until a. re,asonable time had,'Ellapsed for the nscet-tainment ahd payment of these damages; and, as ,oothpal'ties have' addreSsed their arguments to of liability,we iaredisposedto giV'ethem of our views. ' : We, al'Eireferred in thie connection tcinl. large l1mil'ber of decisions of courts.o1i\the highestreSpectabiIity upon'1hevery questions involved in' this'case. If these deci&ll!llls had heert harmonious, lye should not have hesitate'lto. defer to them; but, as these courts have reached different restllts l ,wedonot feel like indicating 8" preferen'ce fur,one or the bther. While all are persuasive, nonearecontrollingj and we have deemed it more satisfactory to treat this as an':original question, and inquire how far itawiy,'be answered ,lily the applibationof well-settled principles. We are ,asked 'to determiDJe! how far a perSon making a lawful and careful use·dfihis own property, or ofa.'franchise granted to him by tha propermnnicipalanthoritiesi, iS'liable for damages incidentally caused to another'Fin othel' wordsjJwhethf::r the riight of the latter to an inj unction does not depend upon something more than the silUple fact that he has sufi'ered:injlirry;though: hil!l!tight to an'utidisturbed use-of his own may antedaoo; thwt of another. 141 1S true that, in' one. case, namely; Reinhardt v. Mentasti,42Ch. Div. is said·that the, principle governing the juris<jliction of court,m cases of nuisance does not 'depend upon the
CUMBERLAND TEliEP.!J.O:NE, &T],!lL. CO. tI,UNlIlED ELECTRIC BY. 00.
the 4efeIfdllnt ,ilil using hiso,wn reasonably ofotliermse, )1I,ut upo,n"the question,!'lo\*lhe injure his neighbors? This ,case lays ,a broader doctrine,j)f1ial>i1ity than any to which our attElntiqnhas been called, it is sufficient, to say in reply toitthatnothing which is authorized by competent authority can be, treated as a nuisance per se. Co. v. ChicflYO, 99 U. S. :635j, Hinthman v. Railroad C-o., 17 N. J. ;Eq. 77j EW3ton v.Ra,ilroaq, Co., 24N. J. Eq. 58jRailwayiOo. v. Heisel, 38 Mich. 62; [)q;vis, v. Mayor, 14 N. Y. 506. We take it to be well settled, so far aspersonEloperating under legislative grants are concerned, more than. mere incidental damage to,another 'must he ,proved-somethiug, in Jact, in ,the ,natur.e of an abuse of the ,francpise-:to entitle .injured to an injunction. !tis perfectly obvious that there are alarge number of instances in which a person may sU,ffer damages without recourse to the offender. Thus, the smoke that fills our hlngs, anqsoils dust that enters our dwellings and stores" our furniture; the noxious odors that 'assail our ,nostrils; the impure water \.Ve are sometimes "compelled to drink,--are the nece!!sary penalties ,pay tor living in cities; but in ordinary cases there is ,nO ,remedy Jor the ,evil. In theaomewhatflowery' lanJustice v.Coal Oo.,;L. R.9' 705:
.. If. Some pict'uresque haven opens its arms to invite the conimerce of the . Vl:'0rld, it; is, n()t. for this court to forbid, .the ;embrace,' although the fruit of it should the sights and sounds and smells of a comwon seaport 8\ldsbipbuilding 'town, 'which' would driv!l the Dryads aull ,their ,flwptheir ancient solitudes.'" . .: " ' ,
I IIJay a il) building a feet from lpy front fence. ¥y upon eith.er side may build theirs upon the line.of the street,: and completely 'ruin its marketvllolue. In "the of aprescriptiveright on mypaJ:t, :they' ma:y ·wall up my windows, and completely, the light, Of! ,undermine the .foundation 'Of J;llyou,ter wall so, and, tumble· down. if. it be necessary to the beneficial enjoyment of their own property, I have no remedy. Panton v. H0Uanq, 17 Johns. 92. There are undoubtedly a ofcases persons have beEln held liable for aninfringement . maxim, sicv,tere tuo.ut alienwll non laJdas; but, upon ex,aminatioll,theywill usua!1y be found to turn upon questions ofnegli.genceor nuisanGe. ... 1. There cis, no doubt. every person is bound: to the exercise of reasonable care in the use of his<;,wn property; and, for any default in , that particqlar, be will be liable toth¢ person injured in an action for negligence.. ,Thus, in Vaugh.an v' Menlov.e. 3 Bittg. N.C. 468, defenda.nt was ,helq, liable for. negligence" inbuildi,ng a so near the extremity ()f his; 01"n, land that, jQ. conaequenc,e of its: :spontaneous ignition, his neighbor's hQ\lse was bUrll,ed, although, in, Higgin8 v. Dewcy, 107 Mass· . 494, this. principle lim.Hed"to.cases where the burning was negligent, 'or migpt. reaso:t:lably have .Qeen e:x;pectedtoinjure:. the property of the neighbor.
280 . '
in the leading case of Rylands v. Fletcher, L. R. 3 H. L. 330, though the case is often cited for the broader proposition, that the person who, for his own purpose, brings on his land and collects and keeps anything there likely to do mischief if it escapes, must keep it at his peril. This case has not been accepted either in England or in this country without some qualifications. The same rule'!tpplies if a man permit a wall which had been negligently constructed to fall upon his neighbor's house, (Gorham v. Gro88, 125 Mass. 232,) or a chimney to which a gas-light company had fastened a telegraph wire, (Gray v. Gas-Light Co., 114 Mass. 149.) The principle of these cases was also applied in Tarry v. Ashton; 1 Q. B. Div. 314, where it was held to be the duty of P. person hanging alainp,over the highway to keep it in good repair. This case 'proceeds, perhaps, as far as any in,holding the defendant responsible. To the same principle is also referable· the case of Coke Co. v. Yes· ltry fJj St. Mary Abbott's 15 Q. B. 'l.Hv. 1, whereby the defendants were ';held liable for usingsteam.rollers; in repairing a highway, so heavy that -they injured the gas-pip.es of the plaintiff. 'I'he statement of the case shows, that the pipes were laid from 20 to 24 inches beneath the surface ofthe streets, and that this was a sufficient depth to prevent their being injured by the ordinary travel ·of the streets, and also by the ordinary mode.of .repair, if steam-rollers;ofgreat weight had not heen used. The decision was put by the court upon the express /1:round that heavier rollers were used than were necessary; and it was said that, if "the defeqdants were expressly authorIzed by statute to use steam-rollers of such a weight as necessarily to injure the plaintiff's pipes, the plaintiffs would have no ground of complaint; The case would then be one of damnum absqueanjuria. The same con!lequence would follow if the defendants were expressly authorized by 8tatllte to repair in some way which neces'sarily required the use of heavy steam-rollers, or other machinery which could not beworkeu withoudlljuring the plaintiff's pipes." 2. Similar to these are the cll.ses in which persons have been held liakeeping-upon their land anything which operates as a nuisance <ito-their neighbors generally;,br tos.ny particular individual. Upon this 'principle,.ifaperson allows a privy to get out of repair, Rnd the water . percolates into his nei/1:hbor's-cellar, (Tenant v. Golding, 1 Ball V. Nye, 99 Mass. 582; Ballard v. Tomlinson, 29 Ch. 115; Cooley, Torts, 568,) or maintains a mill-dam in an unsafe condition, (Mayor v· .Bailey, 2 Denio, 433; Gray /fl. Harris, 107 Mass; 492,)or permits inju,xiousaccumulations of snow or ic&upon his roof, (Shipley v. FiltyA88oci·ates,106 Mass. 194,) or permits' loud and unnecessary noises, (Brill v. [,Flagler, 23 Wend. 354; Tanner v. Albion, 5 Hill, 121,) or carries on a trade offensive to tbe neighborhood, by reason of dust, smoke, foul odors, or jar of machinery ,or otherwise, (Cooley, Torts, 600, 601,) he is liable for the consequences. In' all this class of cnses, the question whether ,the carrying on of an offensive business is a nuisance or not depends very .largely upon the character of the neighborhood, the time it has 'been car:ried on without objection,- and the prior use of the buildings in the vi-
CUMHERLAND TELEPHj)NE &; TEL. CO. 1'. PNITED JllLECTRIC RY. CO.
cinity, as a trade may be adjudged a nuisance in one place, and not in another. Gilbt:rtv. Showe1man, 23 Mich. 448; Robinson v. Baugh, 31 Mich. 290. A leading case 'in the federal courts is that of Baltimore P. R. 00. v. Fifth Baptist Ohtf!rch, 108 U. S. 317, 2 Sup. Ct. Rep. 719. In that case it was held that legislative authority to a railroad company to bring its tracks within the limits of the city of Washington, and to construct shops and engine-houses thAre, did not confer upon it authority to erect noisy workshops in the immediate vicinity of a church where services had been held several times during the week for a number of years before the erection of the shops. But, in delivering the opinion in that case, Mr. Justice FIELD drew a distinction between nuisances of that tion, and a railway through the streets authorized by congress, which, when used with reasonable care, produces only that incidental inconvenience which unavoidably follows the additional occupation of the streets by its cars, with the noises and Ifisturbances necessarily attending their use, and affords no ground of complaint. "Whatever consequential annoyance may necessarily follow from the running of the cars on the road with reasonable care is damnum absque injuria." 3. There are also a few cases which indicate that, even if a man be guilty of no negligence, but is engaged in doing something dangerous in its nature, he is liable for th'e immediate and direct consequences of his acts. Thus, in Hay v. Cohoes Co., 2 N. Y. 159, the defendant, a corporation engaged in digging a canal, was held liable for blasting rocks in such a way that the· fragments were thrown against, 'and injured, plaintiff's dwelling, upon lands adjoining. It was held that it was liable although no negligence or want of skill was alleged or proved. 'rhe doctrine laid down in this case, however, was carefully limited in the subsequent case of Losee v. Buchanan, 51 N. Y. 476, in which the owner of a steam-boiler was held not to be liable for damages occasioned by its explosion, in the absence of proof of fault or negligence on his part; and it was said that the defendant was beld liable in the Cohoea Case upon the ground that its acts in casting the rocks upon the plaintiff's premises were direct .and immediate. In the same line is the case of Cahill v. Eastman, 18 Minn. 324, (Gil. 292,) in which the defendants were held liable for the consequences of an ordinary spring freshet, without proof of negligence or unskillfulness pn their part in the construction and maintenance of a tunnel through which water flowed and damaged the plaintiff's mill. Defendants' liability was put upon the ground that the damages the plaintiff sustained were the direct and immediate result of the defendants' operations on their own land. "The plaintiffs had a right to hold their property free of such a result of the defendants' use of their land." The authorities are carefully collated, and the opinion is a very instructive one. These cases would be apposite, if the defendants had found it necessary, in the construction of their line, to cut the wires of the telephone conlpany, remove its posts, or commit any other direct depredation upon its property.
,4.' Subject to these exceptions, we understand the law to be well settled ,that :1\0 persoriis for damages incidentally occasioned to another by the necessary and beneficial use of his own property, or of a, franchisegNuited to himby'the state.' The principle is thus stated by Judge WOODWORTH in Panton v. HoUq,nd, 17 Johns. 92-99:
"On' am of opinion that no man is answerable in damages for the' teasonable"exercise of a right. when'it is accompanied by a cautious regard for the rights of others, when there is no just ground for the charge of negligence or and whl\ln the act is not done maliciously." ,
Illustrations of this are plentifully scattered through the reports. ,It 'extends not merely to the digging npof ground for a new walls of the next house, are injured, (Panton v. HoUand,'17Johns. 92-99r ThUT8tonV. Hancock, 12 Mass. 220,) but to the burning of fallow land, whereby fire is communicated to adjoining lands, ((}In,rk ".Foot, 8 Johns. 329,) to the erection of a mill-dam, whereby water, is in part.diverted from a lower mill, (Platt v. JohnBon, 15 Johns. 213;) to the building of a basin or bridge, whereby access to plaintiff's dock is obstructed; (Lansing Smith, 8 Cow. 148, 4 Wend. 9; Gilman v. Philadelphia:' 3: WalL 713,) and even to the pollution of a stream by thecdischarge of from; an upper mill, which was suffered to 'float down :UpOIl the mill of "the plaintiff, where it was, shown to have been the.' uniform custom of the country 'to permit it, (Sno'Wv. PaT80n8, 28 Vt.459.) A distinction is drawn between cases where ,the pollution of a. stream is indispensable to its beneficial use, and cases where the pollution is such as to make it absolutely useless to manufacturers·lower down the river. Of the latter class is Merrifield v. bard, 13 Allen, 16, where the defendant threw vitriol and other noxious substances into the stream a short distance above plaintiff's factory, by means of whioh'the water Was corrupted so that it corroded plaintiff's engine and boiler, and rendered them unfit for use. In such cases the court will weigh' the circumstances and necessities of the case, and the rna)).uet'in whicbthe stream has heretofore been used. Cooley, Tort'3, 587 .In the case of Coal,Co. v. Sander8on, 113 Pa. St. 126,6 Atl. Rep. it was held' thaton6! ioperating: a coal mine in the ordinary and usual manner may drain or pump water upon his own lands, which per. calates into the stream which forms the natural drainage of the basin in which the mine was situated, although the quantity of water may thereby be increased, and its quality so affected as to render it totally 'Unfit for domestic purposes by the lower riparian owners. It was inti· mated that the uSe and enjoyment of. a; stream of pure water for domes-tie purposes must, from the, necessity of the case, give way to the inter· eats of theeommunities,in order to ,permit the development of the natural resources of the country, and' to make possible the prosecution of the lawful business of mining coal.' . It is said, in the opinion of the Court, to be "a general propositiol1l, that every man has the right to the natural use and enjoyment of his own property; and if, whilst lawfully
T&L. CO. fl. tJNITM ELECTRIC BY. CO.
in s\lchuaeana.enjoymeilt,without negligence or malice an unavoidable loss occurs to his neighbor, it is damnum absque injuria; for the rightful. use of o'ne's own land may cause damage to another, withoutauy legal wrong." ,; The same principle is applicable. to the case of a public officer, who, if authol'fzed by law to excavate.earth in grading a street, or constructing a. tunnel, will not be responsible, in the absence of negligence, for damage to abutting property owners. Smith v. Washington Corp., 20 How. 135; Tmnsportation Co.· v. Chua-go, 99 U. S. 635; Callender v. Marsh, 1 Pick. 418; &ulcliff'sEx.'rsv.Mayor,4N. Y.195. In this last case, it is said that an act done under lawful authority, if done in Ii proper marmer, can pever subjeQt the party to an action, whatever .consequences may follow. The case of McCombs v. Akron, 15 Ohio, 474, in which it was held that a corporation was liable for injuries to plaintiff's property in cutting down and grading a street, is opposed to the great weight of authority, and in a number of cases has been denied to be law. See, also, Chapman v. Railroad Co., 10 Barb. 360. In Steel Co. v. Kenyon, 6 Ch. Div. 773, it is said, with regard to the storage of water upon defendant's land, that is was necessary for the plaintiff to show, not only that he had sustained damage, but that the defendant had caused it, by going beyond what was necess.ary in order to enable him to have the natural use of his own laud. In Attorney General v. Asylum, L. R. 4 Ch. 146, defendant was held liable for polluting a stream by its sewage, upon the ground that the evil might have been remedied by depositing the sewage elsewhere. Other instances of serious damage, suffered without the possibility of recourse, may occur whenever a rival bridge is' authorized to be built across a stream, as was done in Charles River Bridge v. Warren Bridge, 11 Pet. 420. The building of a new railroad may destroy the value of a turnpike, of a line of coaches, of taverns, public oouses, and even of small towns lying along its line. Illustrations are found in Boulton v. Crowther. 2 Barn. & C. 703; and Nichola v. Marsland, L. R.10 Exch.255. In Rockwood v. TVilaon, 11 Cush. 226, itis said that "nothing can be better settled than that, if one do a lawful act upon his own premises, he cannot be held responsible for injurious consequences that may result frolD it, unless it was so done as to constitute actionable negligence." What shall be considered indirect, as distinguished from direct, inj uries, is clearly stated in Railroad Co. v. Marchant, 119 Pa. St. 541, 13 Atl. Rep. 690, in which a construction was given to a constitutional provision of Pennsylvania securingj(ist compensation by corporations for property "injured or destroyed." as well as ".taken." It was held to be confined to such injuries to one's property as are aatual, positive, and visible,..,the natural and necessary results of the original construction or enlargelDent of its works by a corporation, and of such certain character that compensation theretor may be ascertained at the time the works are being constructed or enlarged, and paid or secured in advance, as distinguished from indirect injllries to the plaintiff, which were the result merely of a.
subsequellt operation of its railroad in lawful manner, without negligence,unskillfulness, or malice. The substance of all the cases we have met with in our examination of this question-and we have cited' but a small fraction of themis that, where a person is making lawful use of his own property, or of a public franchise, in such a manner as to occasion injury to another, the question of his liability will depend upon the fact whether he has made use of the means which, in the progress of science and improvement, have been shown by experience to be the best; but he is not bound ,to experiment with recent inventions, not generally known, or to arioptexpensive devicE;is, when it lies in the power of the person injured to make use of an effective and inexpensive method of prevention. Hoyt v. Jeffers, 30 Mich. 181. If, in the case under consideration, it were shown that the double trolley would obviate the injury to complainant without exposing defendants or the public to any great inconvenience or a larp;e expense, we think it would' be their duty to make use of it, and should have no doubt of our power to aid the complainant by an injunction; but, as the proofs show that a more effectual and less objectionable and expensive remedy is open to the complainant, we think the obligation is upon the telephone company to adopt it, and that defendants are not bound to indemnify it; in other words, that the damage incidentally done to the complainant is not such as is justly chargea,ble to the defendants. Unless weare to hold that the telephone company has a monopoly of the use of the earth, and of all the earth within the city of Nashville, for its feeble current, not only as against the defendants, but as against all forms of electrical energy which, in the'progress of science and invention, may require its use, we dO' not see how this bill can be maintained. We place our denial of an inj't:inction upon the grounds: ; 1. rrhatthedefendants are making lawful use of the franchise con· ferred ,ripon them by state, in a manner contemplated by the statute, and that such act cannot be considered as a nuisance in itself. 2. That,in the exercise of such franchise, no negligence has been no wanton or unnecessary disregard of the rights of the complaina:nt; 3. That the damages occasioned to the complainant are not the direct consequence of the oonstruction of the defendants' roads, but are incidental damages resulting from their operation, and are not recoverable. The (lases involving this principle are almost innumerable; and in our examination of ,them we are satisfied the great weight of authority bearsin. i tliedirection have indicated. As a result, the motion f01" an injunction must be denied.
8WEAT.r V. BURTOB.
(O£rcuit Court, S. D. California. AprU 28,1890.)
EJECTMENT-TITLE TO SUSTAIN-STATE CERTIFICATE OJ!' PURCHASE.
Recovery in ejectment being only on strict legal title, eJectment cannot be maintained on a state certificate of purchase, which is but a contract lor a patent on compliance by the purchaser with its terms, though such certificate is made by the state statutes primajacie evidence of title. .
Ejectment. Wells, Guthrie k Lee, for plaintiff. Frank P. Taylor, (T. M. McNa1Mra, of counsel,) for defendant. Ross, J. This is an action of ejectment brought by the plaintiff to recover of the defendant possession of certain land which was a portion of the land granted to the state of California as swamp and overflowed land by the act of congress of September 28, 1850. The plaintiff relies for a recovery upon a certificate of purchase issued by the receiver of the state land-office to one Lamberson on the 28th of August, 1884, to whose rights he claims to have succeeded by subsequent assignments and mesne conveyances. It will not be necessary to paRS upon the points made and argued by the counsel in the case, for the reason that ejectment cannot be maintained in the federal courts upon a state certificate of purchase, which is but a contract for the sale and conveyance of the land, to be followed by a patent conveying the legal title upon the compliance on the part of the purchaser with the terms of the contract and the full pay· mento£. the purchase price. It is true that by sectiori 3514 of the Political Code of California such certificates are made prima facie evidence of title, and that by the next succeeding section they, together with· all rights acquired thereunder, are made subject to sale by deed or assignment. But it is manifest from the provisions of the California statute upon thesubjectthat, until the issuance of the state patent, the legal title remains.in the state, and s.uch is the decision of the supreme court of thestaie in the case of Manly v. Howlett, 55 Cal. 97 j anli, since it is the 6j)tablished doctrine of the supreme court of the United States that in the federal courts a recovery in ejectment can be had alone upon the strict legal title,it follows necessarily that one holding such state certificate only, cannot maintain such an action in this court, whatever effect may be given in the state courts to the state statute making such certificates prima facie evidence of title. In a late case in the supreme court-that of Langdon v. Sherwood, 8 Sup. Ct. Rep. 429-the court,in speaking of a: statute ofihe state of Nebraska which declared that the duplicate receipt of the receiver of any land-office that the books of his office show the sale of a tract ofland to a certain individual "is proof oHitle, equiv. alent to a patent, Ilgainst all but the holder of an actual patent," saId that, "whatever effect may be given to this statute in the courts of the state of Nebraska, it is obvious that in the circuit .court of the United States it cannot be received as establishing the legal title in the holder