ERROR TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA
White, McKenna, Holmes, Day, Lurton, Hughes, Van Devanter, Lamar, Pitney
MR. JUSTICE PITNEY delivered the opinion of the court.
Plaintiff in error, who was plaintiff below, commenced this action in the Supreme Court of the District of Columbia to recover for the damage to his property resulting from the maintenance of an alleged nuisance by defendant by means of the operation of a railroad and tunnel upon its own lands near to but not adjoining those of plaintiff. Defendant having pleaded not guilty, the issue came on for trial by jury, and at the conclusion of plaintiff's evidence a verdict was directed in favor of defendant. The Court of Appeals affirmed the judgment (37 App. D.C. 289), and a writ of error brings the controversy under the review of this court.
An agreed abridgment of the evidence upon which the ruling of the trial justice was based is embodied in the bill of exceptions. From this it appears that plaintiff is and has been since the year 1901 the owner of Lot 34 in Square 693 in the City of Washington, having a frontage of 20 ft. upon the westerly side of New Jersey Avenue, Southeast, and an average depth of 81 ft., with improvements thereon consisting of a three-story and basement brick dwelling-house containing ten rooms, known as No. 415 New Jersey Avenue. The rear windows upon all the floors of the house open in the direction of the railroad tracks that lead from defendant's tunnel. The south portal of this tunnel opens within Square 693 and near its
northeasterly corner, and the tunnel extends thence in a northeasterly direction passing under the Capitol and Library grounds and First Street N.E., to the Union Station at Massachusetts Avenue. There are two sets of railroad tracks in the tunnel and leading from it, and as these emerge from the south portal they extend in a general southwesterly direction up an incline or grade across the central portion of Square 693 on to an elevated structure which carries the tracks over and beyond South Capitol Street. The tunnel and these tracks are used for the passage of trains running both northwardly and southwardly, about thirty each day, all of them being passenger trains with the exception of an occasional shifting engine. The trains frequently pass in and out of the tunnel without stopping, but trains also very often stop at or near a switch tower that is situate near the centre of Square 693. From the nearest portion of plaintiff's house to the centre of the south portal, the distance in a straight line is about 114 ft., there being three intervening dwelling houses, two of which have been purchased and are now owned by defendant. From the rear end of plaintiff's lot to the middle of the tracks southwestwardly from the portal the distance in a straight line is about 90 ft. Plaintiff's property has been damaged by the olumes of dense black or gray smoke, and also by dust and dirt. cinders and gases, emitted from the trains while passing over the tracks and in or out of the tunnel or standing upon the tracks near the signal tower. There is a fanning system installed in the tunnel which causes the gases and smoke emitted from engines while in the tunnel to be forced out of the south portal, and these gases and smoke contaminate the air, and also add to the inconvenience suffered by plaintiff in the occupation of his property. His house was pleasant and comfortable for purposes of occupation before the construction of the tunnel and tracks, but since then it has not only depreciated in value, but the tenant
removed therefrom, and plaintiff was obliged to occupy the house himself by reason of his inability to rent it. The property has depreciated from a value of about $5,500 to about $4,000, and the rental value from $30 per month to $20 per month. The furniture and other belongings in the house have been depreciated from a value of $1,200 to $600, all of which depreciation is due to the presence of smoke, cinders, and gases emitted from passing trains and from the mouth of the tunnel, which smoke, cinders, and gases enter the dwelling house and settle upon the furniture and other personal property contained in it, contaminating the air and rendering the house objectionable as a habitation. The house has also been damaged by vibrations caused by the movement of trains on the track or in the tunnel, resulting in cracking the walls and wall paper, breaking glass in the windows, and disturbing the peace and slumber of the occupants.
The defendant, the Washington Terminal Company, is the owner of the tunnel and of the tracks therein, but its ownership of tracks ceases at the south portal. The tracks extending therefrom in a southwesterly direction are owned and used by other railroad companies, but the movement of the trains is controlled by defendant.
The tunnel and the tracks leading from it across Square 693 were located and constructed and are now maintained under the authority of acts of Congress of February 12, 1901, c. 354, 31 Stat. 774, and February 28, 1903, c. 856, 32 Stat. 909, in accordance with plans and specifications approved by those acts. No claim is made by plaintiff that the tunnel, the tracks in Square 693, and the trains operated therein and thereon, were constructed, operated, or maintained in a negligent manner; and it is conceded that the tunnel and tracks were built upon property acquired by purchase or condemnation proceedings, and were constructed under authority of the acts of Congress
and of permits issued by the Commissioners of the ...