Opinion
No. 30975.
April 9, 1934.
1. NUISANCE.
Whether electrical displays over electrical substation during storms alleged to result in loud and violent explosions and shooting of balls of fire into air and on ground were of such character as to materially affect plaintiffs' use and enjoyment of their residence property and diminish market value thereof held for jury.
2. NUISANCE.
In action for damages from operation and maintenance of electric substation near plaintiffs' residence, testimony of other residents respecting disturbances emanating from substation and effect on them and conditions created thereby in their residences, held admissible as tending to show existence and harmful effect of disturbances.
3. NUISANCE.
Instruction authorizing recovery for depreciation in market value of residence property from mere location, operation, and presence of electric substation, regardless of whether alleged noises, explosions, and reflections of light emanating from substation were of such nature, frequency, and intensity as to constitute substantial and material interference with comfort and convenience of plaintiffs' use of property held erroneous.
APPEAL from Circuit Court of Marion County.
Eaton Eaton, of Gulfport, Ford McGehee and Rawls Hathorn, all of Columbia, and Wilbourn, Miller Wilbourn, of Meridian, for appellant.
The substation was on appellant's own property, lawfully acquired by appellant. The erection thereon of a substation was not in violation of any state or municipal zoning law. The substation was a necessary structure in the discharge of appellant's lawful business in the service of the public.
Sections 1504, 1505, 1506 and 1507, Code of 1930; Hazlehurst v. Mayes, 84 Miss. 7, 36 So. 33, 64 L.R.A. 805; Gulf Coast Ice Mfg. Co. v. Bowers, 80 Miss. 581, 32 So. 114; McCullough v. Interstate Power Light Co., 300 P. 165; Crawford v. Ala. Power Co. (Ala.), 128 So. 454; Brandt v. Spokane Inland Empire R. Co., 78 Wn. 214, 138 P. 871, 52 L.R.A. (N.S.) 760; Bradley v. Spokane Inland Empire R. Co., 140 P. 688, L.R.A. 1917C 225; State ex rel. Chelan Electric Co. v. Superior Court, 253 P. 115, 58 A.L.R. 779; Commonwealth v. Morrison, 83 N.E. 415, 197 Mass. 199, 14 L.R.A. (N.S.) 194; 20 C.J. 324.
It was not alleged nor proved that the location, erection and maintenance of the substation was negligent and the court below correctly charged the jury peremptorily to that effect. The location, erection, maintenance and operation of the substation being lawful and non-negligent, the substation was not a nuisance.
Continental Oil Co. v. City of Wichita Falls, 42 S.W.2d 236; Giller v. West, 69 N.E. 548; Marshall v. City of Dallas, 253 S.W. 887; Peck v. Newburg Light Power Co., 116 N.Y. Sup. 433; McCarty v. National Carbonic Gas Co., 81 N.E. 549, 13 L.R.A. (N.S.) 465; Hughes v. General Electric Light Power Co., 54 S.W. 723; McCann v. Strang, 97 Wis. 551, 72 N.W. 1117; Heath v. Brighton Corp. (1908), (Eng.), 98 L.T. (N.S.) 718, 72 J.P. 225, 24 Times L.R. 414.
That which is lawful cannot be a nuisance.
Chichester et al. v. Kroman, 128 So. 166, 221 Ala. 203; State v. L. N. Railroad Co., 48 So. 391, 158 Ala. 208; Southern R.R. Co. v. Ables, 45 So. 234, 153 Ala. 523; Jones v. Adler et al., 62 So. 777, 183 Ala. 435; Crofford v. A.B. A.R. Co., 48 So. 366, 158 Ala. 288.
The proper doing of that which the law authorizes is not a nuisance and appellees cannot recover from appellant for damages based upon the claim that the substation is a nuisance.
Maddox v. Georgia R.R., 116 Ga. 64; Central of Ga. Power Co. v. Hamm, 139 Ga. 567, 573; Jones v. North Ga. Electric Co., 125 Ga. 618, 625; Sheppard v. Ga. Ry. Power Co., 31 Ga. App. 653, 657; Smith v. Dallas Co., 27 Ga. App. 22, 25; Montgomery Light Power Co. v. Charles, 258 Fed. 723; McCutchen v. Blanton, 59 Miss. 116; King v. Vicksburg Railroad Co., 88 Miss. 456, 42 So. 204, 6 L.R.A. (N.S.) 1036; Indian Creek Drainage District v. Garratt, 85 So. 312, 123 Miss. 301; Robertson v. N.O. G.N. Railroad Co., 158 Miss. 24, 129 So. 100; Robbins v. Scranton, 217 Pa. 577, 66 A. 977; Dean v. Southern Railroad, 112 Miss. 334, 73 So. 55.
The substation involved here is an appropriate instrumentality, essential under the proof in this record, to the effective discharge by the appellant of its public function in the direct and immediate service of the public in furnishing them electric energy.
Dean v. Southern Railroad, 112 Miss. 334, 73 So. 55; Roman Catholic Church v. Penn. Railroad, 207 Fed. 897, L.R.A. 1915E 623; Green v. Lake, 54 Miss. 540; Canton v. Cotton Warehouse, 84 Miss. 268; Moore v. Swamp Drainage Co., 88 So. 522, 125 Miss. 842; Railroad v. Brown, 64 Miss. 479, 1 So. 637; Railroad v. Stingley, 71 So. 376, 111 Miss. 236; Y. M.V.R.R. Co. v. Hughes, 103 So. 805, 139 Miss. 177; White v. Yazoo City, 27 Miss. 357; Homochitto v. Withers, 29 Miss. 21; Taylor v. Chicago, Milwaukee St. Paul R. Co., L.R.A. 1915E 635; Smith v. St. Paul, M. M. Railroad Co., 39 Wn. 355, 70 L.R.A. 1018; Bennett v. Long Island Railroad Co., 181 N.Y. 431, 74 N.E. 418; Beseman v. Penn. Railroad Co., 50 N.J.L. 235, 13 A. 164; Uvalde Electric Light Co. v. Parsons, 138 S.W. 163; St. Louis S.F. Railroad v. Shaw, 92 S.W. 30, 6 L.R.A. (N.S.) 245; Oklahoma v. Dunham, 88 S.W. 849; Houston Railroad v. Barr, 99 S.W. 438; Grossman v. Railroad, 92 S.W. 836; Birmingham Railroad v. Smyer, 181 Ala. 121, 61 So. 354, 47 L.R.A. (N.S.) 597; Peck v. Newburg Light, Heat Power Company, 116 N.Y. Sup. 433; Montgomery Light Water Power Company v. Charles, 258 Fed. 723; Standard Oil Co. et al. v. Kahn, 141 S.E. 643; Higgins v. Produce Co., 81 A.L.R. 1199, 242 N.W. 109; Brown v. Easterday, 194 N.W. 798; Nevins v. McGavock, 106 So. 597; Comfort v. Kosciusko, 88 Miss. 611, 41 So. 268; Desporte v. Biloxi, 100 So. 387, 136 Miss. 542; Lowther v. So. Carbon Co., 112 So. 711; Drennan v. Mason, 133 So. 689; Alabama Power Co. v. Keystone Lime Co., 191 Ala. 58, 67 So. 833.
Damages cannot be received from diminution in value of property by reason of the lawful use of nearby property by its owner, if no public or private nuisance is created.
Marshall v. City of Dallas, 253 S.W. 887; Brown v. Easterday, 194 N.W. 798; Nevins v. McGavock, 106 So. 597; Hughes v. General Electric Light Power Co., 54 S.W. 723.
The court, also, erred in admitting testimony to go to the jury over the objection of the appellant as to the danger sign set up at the substation and as to the apprehensions or fears of the occupants of other houses and of the appellees.
Roy J. Goss, B.J. Goss and Hall Hall, all of Columbia, for appellees.
It matters not how lawful appellant's business may be, and it matters not that it is serving the public; if it has damaged appellees' property, then it is liable in law for such damage, and the lawful nature of its business and its character as a public service corporation do not clothe it with immunity.
Ganster v. Metropolitan Electric Co., 64 A. 91; Rogers v. Philadelphia Traction Co., 182 Pa. 473, 38 A. 399, 61 A.S.R. 716; Fendley v. City of Anaheim, 294 P. 769.
Counsel for appellant have cited no authority whatever by which a taking or damaging of private property by a public service corporation can be permitted without just compensation being allowed for such damage.
The substation is a nuisance.
20 R.C.L. 380; Higgins v. Bloch, 104 So. 429; Town of Vernon v. Edgeworth, 42 So. 749.
It has been observed occasionally that in an action for creating a nuisance, the existence of the nuisance fixes the liability without proof of negligence on the part of the defendants.
20 R.C.L. 381; Y. M.V.R.R. v. Sanders, 87 Miss. 609; Green v. Lake, 54 Miss. 540; Dean v. Southern Railway, 73 So. 55.
Counsel for appellant have repeatedly pointed out that according to the testimony of the electrical experts there is absolutely no danger of any person being injured by the explosion of balls of fire on the substation. Conceding for the sake of argument that there is no danger, still even the appellant must admit that the entire neighborhood has been put in great fear.
Everett v. Paschall, 61 Wn. 47, 111 P. 879, Ann. Cas. 1912B 1128; King v. Vicksburg, etc., 88 Miss. 486; A. V. Ry. Co. v. King, 93 Miss. 379, 47 So. 857; Robertson v. N.O.G.N.R.R. Co., 158 Miss. 24, 129 So. 100.
Noises may be of such a character and intensity as to so unreasonably interfere with the comfort and enjoyment of private property as to constitute a nuisance, and, in such cases, injury to the health of the complaining party need not be shown.
Higgins v. Produce Co., 81 A.L.R. 1199.
The authorities are numerous which hold that noise alone, or noise accompanied by vibration, if it be of such character as to be productive of actual physical discomfort and annoyance to a person of ordinary sensibility, may create a nuisance, and may be the subject of an action at law, or an injunction from a court of equity, though such noise and vibration may result from the carrying on of a trade or business in a town or city.
20 R.C.L. 445.
In assessing the damages for the maintenance of a nuisance in the neighborhood of a residence or dwelling, the jury may look to such injury as occurs in the use of the property as a residence, taking into consideration the discomfort and annoyance which the owner has suffered from the nuisance.
20 R.C.L. 470; Krebs v. Hermann, 79 A.L.R. 1054.
Evidence of similar occurrences is admitted where it appears that all the essential physical conditions on two occasions were identical.
22 C.J. 751, 752, 753; 10 R.C.L. 926-927; Mississippi Mills v. Smith, 69 Miss. 299, 307.
Appellees instituted this suit in the circuit court of Marion county against the appellant, seeking to recover damages to their residence alleged to have been sustained by reason of the construction, maintenance, and operation of an electric substation near such residence. There was a verdict and judgment for one thousand dollars, from which this appeal was prosecuted.
The declaration does not charge that the location of the substation was unlawful or in violation of any zoning law of the city of Columbia, or that it was negligently constructed, or that its mere presence near the property of appellees causes any damage, but the suit is predicated upon the theory that the results of the construction and maintenance of the substation constitute such an invasion of appellees' property as to produce a depreciation in the value thereof. The declaration charges numerous results from the maintenance and operation of the substation which constitute alleged violations of appellees' legal rights, all of which upon the proof offered in support thereof were correctly eliminated by instructions of the court, except two. The two charges of the declaration that were submitted to the jury were that "the defendant has maintained and operated the said substation in close proximity to the plaintiffs' said property in such a manner as to invade the rights of the plaintiffs, in this, to-wit:
"a. Has continuously created a constant hum or noise, which permeates the surrounding atmosphere and is continuously heard by plaintiffs while occupying their said dwelling house. . . .
"d. The said power wires and plant are so maintained by the defendant that on frequent occasions large balls of fire are caused to explode upon and about said plant with a tremendous sound, thereby putting the plaintiffs in great fear and rendering their said home almost uninhabitable."
The testimony is voluminous in reference to alleged invasions of appellees' property resulting from the operation of the substation, with much testimony of a technical nature in reference to proper and approved construction of electrical stations and appliances, and the known and somewhat speculative properties and characteristics of electricity, both artificial and as manifested in lightning. The court below correctly eliminated much of this testimony from the consideration of the jury, by instructing it that under the proof the substation is properly equipped with modern and approved appliances of standard construction, properly installed, and in good condition; that it is not unlawfully or negligently located, constructed, or maintained; that the appellant cannot control lightning or atmospheric electricity, or prevent its getting on its lines or wires; that there is no reasonable ground for apprehension of danger to persons or property from the presence and operation of the station; that no recovery could be had on account of radio interference, or interference with the efficient use of their radio; that there could be no recovery on account of danger signs on the substation, or on account of physical injury to appellees' residence from noise and vibrations; and that there could be no recovery on account of any decline in the market value of the property due to general business conditions and the general decline in value of materials and labor; and the court might have properly instructed the jury that there could be no recovery on account of a humming noise which constantly emanated from the transformers in the substation, as we do not think the evidence shows that this noise was of sufficient intensity to interfere with the comfortable use of the property or to impair the market value thereof.
There are numerous authorities supporting the view that recovery may be had for noise when it is of such character and intensity as to so unreasonably interfere with the comfort and enjoyment of private property as to constitute private nuisance and materially diminish the market value of such property. 20 R.C.L. 445, and authorities there cited. This doctrine is expressly recognized in this state in the case of King v. Railway Light Co., 88 Miss. 456, 42 So. 204, 205, 6 L.R.A. (N.S.) 1036, 117 Am. St. Rep. 749, wherein the effect of section 17, Constitution of 1890, was discussed in the following language:
"Public authority may confer the right to operate a public work, and thus make it lawful, but cannot confer a right to take or damage private property without compensating the owner for its value as taken or damaged — i.e., diminished in its market value as property — by some physical invasion of it or by affecting some right of the owner in relation to it. . . . Constitution, section 17, makes the right of the owner of private property superior to that of the public, reversing the former rule that the individual might be made to suffer loss for the public. He may still be compelled to part with his property for public use, but only on full payment for it or any right in relation to it. . . . The decisions of this court since the Constitution of 1890 give full effect to the just rule established by its seventeenth section, by maintaining the right of the owner to be fully compensated for any loss of value sustained from any physical injury to his property or disturbance of any right in relation to it, whereby its market value is diminished."
In the case at bar there were many witnesses who testified as to electrical disturbances emanating from this substation at times of local storms, and at times of storms at distant points along the power line extending east from Columbia. These electrical displays and disturbances were described in detail, a comprehensive conception of which, however, would require an examination of the entire testimony of these witnesses. In general terms their testimony was to the effect that there were frequent displays of electricity over the entire substation resulting in loud and violent explosions and the shooting of balls of fire, large and small, into the air, and onto the ground surrounding the substation, which balls of fire were either projected into the residence of appellees or created a blinding light so intense as to create the illusion of actual fire in the home. As to the possibility of such electrical displays as were described by the appellees' witnesses, the frequency, extent, and intensity thereof, the evidence was conflicting, but we are of the opinion that it was proper to permit the jury to pass upon this conflicting testimony, and to say whether these electrical displays were of such character as to so materially affect the right to the use and enjoyment of the property as to diminish the market value thereof. Consequently, the court below committed no error in refusing the peremptory instruction requested by the appellant.
The appellant contends that error was committed in admitting the testimony of other persons residing in the vicinity of the substation as to electrical disturbances emanating from it, and as to the effect upon them and the condition created thereby in their residences. This testimony was not offered to show that other property in the neighborhood was thereby damaged, but its purpose was merely to describe the condition at or near the substation, and the identical incidents and disturbances upon which the appellees relied. The appellees' residence was closer to the substation than any others, and the evidence of these witnesses described similar occurrences under essential physical conditions which were identical, and was therefore admissible as tending to show the existence and harmful effect of the purported disturbances. 22 C.J. 751.
The appellant next complains of the granting to the appellees of the following instruction:
"The court instructs the jury for the plaintiffs that in order for you to return a verdict for the plaintiffs it is not necessary for you to believe that the substation in question was and is unlawfully or negligently located, or unlawfully or negligently operated or maintained, nor is it necessary for you to believe that the defendant is not using modern and proper devices and appliances thereat, but the jury is instructed that if you believe from the evidence that the location, operation and presence of the substation at the place in question is such that the same has substantially diminished the market value of the property of the plaintiffs and that the plaintiffs have been thereby damaged, then the jury should return a verdict for the plaintiffs in such amount as you may believe from the evidence that the market value of said property of the plaintiffs has been lessened or diminished by reason thereof."
As we construe this instruction it authorized a recovery for any depreciation of market value of appellees' property resulting from the mere location, operation, and presence of the substation at the place in question, regardless of whether or not the noises, explosions, and reflections of light resulting from electrical discharges emanating from the substation were of such nature, frequency, and intensity as to constitute such substantial and material interference with the comfort and convenience of the appellees in the use of their property to materially diminish the market value thereof. We think this was error, and that the limitation indicated above should have been embodied in the instruction, and for this error the judgment of the court below will be reversed.
Upon a new trial the evidence to establish depreciation of the market value, if any, should be limited to such depreciation as resulted solely from those elements which are sufficiently established by the proof to constitute an invasion of appellees' legal rights.
Reversed and remanded.