The case has been frequently followed, and its authority completely established by repeated decisions in this State. It is an application of a principle well settled, that private interests must yield to the public welfare; but the case carries to the utmost limit the right of the Legislature, for public reasons, to interfere with private property to the injury of the owner, without making compensation. The case of Bellinger v. New York Central Railroad Co. (23 N. Y. 42) is another case frequently cited to support the claim that a use of property authorized by the Legislature, cannot, in the absence of negligence, constitute an actionable injury. It was an action brought for the flooding of the plaintiff's land on the Mohawk flats, caused, as was charged, by the turning of the water of the West Canada creek out of its natural course, by an embankment constructed for the use of the railroad over the low lands west of the creek . . . The Court in its opinion, conceded that according to the general rule of law, if the structures of the defendant caused the injury, it would be liable irrespective of negligence, but held that as the company was authorized by statute to construct its road across the creek at the point where it was located, it was liable only for such consequences as were attributable to a failure to exercise due care and skill in executing the statute authority. The case of Bellinger v. New York Central Railroad Company is perhaps the strongest case to be found in our reports, of the application of the doctrine that a statutory authority justifies acts which otherwise would give a right of action. But it will be noticed that it was a case where the line of the road was fixed by the charter. It was necessary, in constructing the road on that line, to cross the creek on a bridge, and the low lands upon an embankment. . . . But the statutory sanction which will justify an injury to private property, must be express, or must be given by clear and unquestionable implication from the powers expressly conferred, so that it can fairly be said that the Legislature contemplated the doing of the very act which occasioned the injury. This is but an application of the reasonable rule that statutes in derogation of private rights, or which may result in imposing burdens upon private property, must be strictly construed. For it cannot be presumed, from a general grant of authority, that the Legislature intended to authorize acts to the injury of third persons, where no compensation is provided, except upon condition of obtaining their consent. . . There are two recent English cases which apply with great distinctness the principle that a statutory sanction cannot be pleaded in justification of acts which, by the general rules of law, constitute a nuisance to private property, unless they are expressly authorized by the statute under which justification is made, or by the plainest and most necessary implication from the powers expressly conferred. These are the cases of Hill v. Managers of the Metropolitan Asylum District (L. R., 4 Q. B. Div. 433; S. C. on appeal, 6 App. Cas. 193 [supra, No. 1152]), and Truman v. London & Brighton Railway Co. (L. R., 25 Ch. Div. 423). . . . [In the former,] it was held that the statutory sanction sufficient to justify the creation of a nuisance, must be express; that the particular land or site for the hospital must have been defined in the Act, or, as held by one of the judges, it must appear that the Act, while defining certain general limits, could not be complied with at all without creating a nuisance, and that the erection of the hospital at the particular place was made imperative. . . . The authority conferred upon the present defendant by the sixth section of the Act of 1848, to run its trains over the Harlem railroad, was not, however broadly construed, a legislative sanction to commit a nuisance upon private property. The authority expressly given was not absolute, but conditional upon obtaining the consent of the Harlem railroad. It could not be known by the Legislature that the building of an engine-house would necessarily interfere with private rights. However necessary it may be for the defendant that its engine-house should be located where it is, this constitutes no justification for the injury suffered by the plaintiff, nor is it any answer to the action that it exercises all practicable care in its management. It may have the right, which it claims, to acquire land by purchase for the accommodation of its business, but it must secure such a location as will enable it to conduct its operations without violating the just rights of others. The case of Baltimore & Potomac Railroad Co. v. Fifth Baptist Church (108 U. S. 317) fully supports the conclusion we have reached in this case, and the able opinion of Mr. Justice FIELD in that case vindicates the right of private property to protection against substantial invasions under color of corporate franchises. The judgment should be reversed and a new trial ordered. All concur. Judgment reversed. 1155. SAWYER v. DAVIS SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1884 136 Mass. 239 BILL of Review, alleging the following facts: The plaintiffs, who were manufacturers in Plymouth, were restrained by a decree of this Court, made on October 1, 1881, upon a bill in equity brought by the present defendants, from ringing a bell on their mill before the hour of six and one half o'clock in the morning; which decree was affirmed by the full court on September 7, 1882. (See Davis v. Sawyer, 133 Mass. 289.) On March 28, 1883, the Legislature passed an act, which took effect upon its passage, as follows: "Manufacturers and others employing workmen are authorized, for the purpose of giving notice to such employees, to ring bells and use whistles and gongs of such size and weight, in such manner and at such hours as the board of aldermen of cities and the selectmen of towns may in writing designate." (St. 1883, c. 84.) On April 18, 1883, the selectmen of Plymouth granted to the plaintiffs a written license to ring the bell on their mill in such manner, and at such hours, beginning at five o'clock in the morning, as they were accustomed to do prior to the injunction of this court. The prayer of the bill was that the injunction might be dissolved, or that the decree might be so modified as to enable the plaintiffs to act under their license without violating the decree of this court; and for other and further relief. The defendants demurred to the bill, assigning, among other grounds of demurrer, that the St. of 1883, c. 84, was unconstitutional, so far as applicable to the defendants. Hearing on bill and demurrer, before COLBURN, J., who reserved the case for the consideration of the full court. C. G. Davis, for the defendants. F. D. Allen, for the plaintiffs. C. ALLEN, J. 1. Nothing is better established than the power of the Legislature to make what are called police regulations, declaring in what manner property shall be used and enjoyed, and business carried on, with a view to the good order and benefit of the community, even although they may to some extent interfere with the full enjoyment of private property, and although no compensation is given to a person so inconvenienced. . . . It is ordinarily a proper subject for legislative discretion to determine by general rules the extent to which those who are engaged in customary and lawful and necessary occupations shall be required or allowed to give signals or warnings by bells or whistles, or otherwise, with a view either to the public safety, as in the case of railroads, or to the necessary or convenient operation and management of their own works; and ordinarily such determination is binding upon the Courts, as well as upon citizens generally. And when the Legislature directs or allows that to be done which would otherwise be a nuisance, it will be valid, upon the ground that the Legislature is ordinarily the proper judge of what the public good requires, unless carried to such an extent that it can fairly be said to be an unwholesome and unreasonable law. Bancroft v. Cambridge, 126 Mass. 441. It is accordingly held in many cases, and is now a well established rule of law, at least in this Commonwealth, that the incidental injury which results to the owner of property situated near a railroad, caused by the necessary noise, vibration, dust, and smoke from the passing trains, which would clearly amount to an actionable nuisance if the operation of the railroad were not authorized by the Legislature, must, if the running of the trains is so authorized, be borne by the individual, without compensation or remedy in any form. . . . And the same rule extends to other causes of annoyance which are regulated and sanctioned by law. . . . The recent case of Baltimore & Potomac Railroad v. Fifth Baptist Church, 108 U. S. 317, is strongly relied on by the defendants as an authority in their favor. There are, however, two material and decisive grounds of distinction between that case and this. There the railroad company had only a general legislative authority to construct works necessary and expedient for the proper completion and maintenance of its railroad, under which authority it assumed to build an enginehouse and machine-shop close by an existing church, and it was held that it was never intended to grant a license to select that particular place for such works, to the nuisance of the church. Moreover, in that case, the disturbance was so great as not only to render the church uncomfortable, but almost unendurable as a place of worship, and it virtually deprived the owners of the use and enjoyment of their property. We do not understand that it was intended to lay down, as a general rule applicable to all cases of comparatively slight though real annoyance, naturally and necessarily resulting in a greater or less degree to all owners of property in the neighborhood from a use of property or a method of carrying on a lawful business which clearly falls within the terms and spirit of a legislative sanction, that such sanction will not affect the claim of such an owner to relief; but rather that the Court expressly waived the expression of an opinion upon the point. In this Commonwealth, as well as in several of the United States and in England, the cases already cited show that the question is settled by authority, and we remain satisfied with the reasons upon which the doctrine was here established. Courts are compelled to recognize the distinction between such serious disturbances as existed in the case referred to, and comparatively slight ones, which differ in degree only, and not in kind, from those suffered by others in the same vicinity. Slight infractions of the natural rights of the individual may be sanctioned by the Legislature under the proper exercise of the police power, with a view to the general good. Grave ones will fall within the constitutional limitation that the Legislature is only authorized to pass reasonable laws. The line of distinction cannot be so laid down as to furnish a rule for the settlement of all cases in advance. . . . 2. In the case before us, looking at it for the present without regard to the decree of this Court in the former case between these parties, we find nothing in the facts set forth which show that the statute relied on as authorizing the plaintiffs to ring their bell (St. 1883, c. 84) should be declared unconstitutional. . . . The defendants, however, contend that a different question arises in the present case, where the plaintiffs rely upon a legislative sanction given to acts after it had been determined by this Court that the doing of them was attended with a peculiar injury to the defendants, which entitled them to a remedy as for a nuisance. In the first place, we can have no doubt that the statute by its just construction is in its terms applicable to the present case. It is undoubtedly true that neither a general authority nor a particular license is to be so construed as to be held to sanction what was not intended to be sanctioned. A general authority is not necessarily to be treated as a particular license. . . . And, ordinarily, a statute which authorizes a thing to be done, which can be done without creating a nuisance, will not be deemed to authorize a nuisance. . . . But, on the other hand, the authority to do an act must be held to carry with it whatever is naturally incidental to the ordinary and reasonable performance of that act. . . . It must be considered, therefore, in this case, that a legislative sanction has been given to the very act which this Court found to create a private nuisance. It is then argued that the Legislature cannot legalize a nuisance, and cannot take away the rights of the defendants as they have been ascertained and declared by this Court; and this is undoubtedly true, so far as such rights have become vested. For example, if the plaintiff under an existing rule of law has a right of action to recover damages, for a past injury suffered by him, his remedy cannot be cut off by an act of the Legislature. . . But, on the other hand, the Legislature may define what in the future shall constitute a nuisance, such as will entitle a person injured thereby to a legal or equitable remedy, and may change the existing commonlaw rule upon the subject. . . . The fact that the rights of citizens, as previously existing, are changed, is a result which always happens; it is indeed in order to change those rights that the police power is exercised. So far as regards the rights of parties accruing after the date of the statute, they are to be governed by the statute; their rights existing prior to that date are not affected by it. . . . The injunction which was awarded by the Court, upon the facts which appeared at the hearing, did not imply a vested right in the present defendants to have it continued permanently. . . . Demurrer overrruled. 1156. TOWALIGA FALLS POWER COMPANY v. SIMS SUPREME COURT OF GEORGIA. 1909 6 Ga. App. 749, 65 S. E. 844 [The facts are stated ante, in No. 330, Vol. I.] POWELL, J. 1. The properly doing of that which the law itself expressly authorizes is not a nuisance, although it be the doing of that which but for the justification of the law's express authority would be so. This principle is too universally recognized to require any citation of authority. . . . If a public or quasi public corporation, without negligence and in a proper manner, does only the things necessary or fairly incidental to its authorized public business, and thereby injures another, the person so injured is without redress, except as to damages suffered in and through property or a property right; and in such cases the sole measure of damages is the actual loss (direct and consequential) sustained in the value of his property or property rights. 2. The justification and exemption afforded by the law or the charter |