#### L. C. TAYLOR et al. v. THE SEABOARD AIR LINE RAILWAY.

(Filed 6 November, 1907).

1. Railroads — Trustees of Church — Nuisance—Permanent Damages.

An action by the trustees of a church for permanent damages against a railroad company, caused by the propinquity of its terminal and depot to the church, and the manner of its use, will not lie, whether the railway company acquired the property by purchase or condemnation proceedings.

2. Same — Damages—Lawful Exercise of Rights — Nuisance—Specific Allegations — Demurrer.

Personal interests and comfort must yield to public necessity or convenience, and the-lawful operation of a railway, with reasonable care, is not an actionable nuisance. Therefore, a demurrer will be sustained to a complaint which does not point out in a specific manner the particulars wherein the defendant has exceeded its legal or chartered rights.

3. Same.

A demurrer will be sustained to a complaint in a suit brought by the trustees of a church against a railroad company alleging that the defendant, in the use and operation of its railroad at its terminal, wantonly and negligently created and maintained its terminal and premises contiguous to plaintiff’s lot on the opposite side of the street therefrpm, so as to greatly endamage the church and manse and to render them less valuable as a place of worship and residence, without specifying any act which the railroad did not have the lawful authority to do, or that it needlessly and heedlessly caused the acts complained of.

4. Same — Nuisance—Damages—Trustees of Church — Damages to Pastor, etc.

In suit by the trustees of a church against a railroad company for the improper use of its terminal or depot at or near the *401manse of the church, no recovery can be had for any physical suffering upon the part of their pastor, his family or the individuals composing the congregation.

This actioh was beard by Qouncill, Jat July Term,-1907, of tbe Superior Court of GeaNville, County, upon complaint and demurrer.

From tbe judgment overruling tbe demurrer defendant appealed.

B. B-. Royster and T. Lanier for plaintiffs.

Day, Bell & Allen and Graham £ Devin for defendant.

BeowN, J.

It appears from tbe complaint tbat plaintiffs are tbe trustees of tbe Oxford Presbyterian Ohurcb, situated, with tbe manse for tbe use of tbe pastor, on tbe east side of Gilliam Street, and tbat tbe congregation for wbicb tbey are trustees bave been using tbe property for religious purposes since 1833. Tbe complaint- alleges tbat defendant operates a line of railway to tbe town of Oxford, and tbat tbe terminus of tbe said line of railroad is witbin tbe corporate limits of tbe said town and very near tbe center thereof; tbat tbe freight depot and passenger station of tbe said railroad, which are used, operated and controlled by tbe defendant, are on the west side of said Gilliam Street and nearly opposite to tbe said church building and dwelling, and tbe tracks of tbe said railroad leading to tbe said freight depot and passenger station cross said Gilliam Street very near said church and dwelling. Plaintiffs further aver tbat, in tbe use and operation of tbe said railroad, freight depot, passenger station and tracks thereon, tbe defendant has wantonly and negligently created, maintained and permitted on its terminal premises contiguous to tbe plaintiffs’ lot, and on tbe opposite side of tbe street therefrom, such nuisances as to greatly endamage tbe church and manse and to render them less valuable as a place of worship and residence. Tbe pleader then sets out specifically tbe particular acts' constituting tbe alleged nuisances:

*4021. By tbe ringing of bells, sounding of whistles, blowing off of steam, and tbe loud puffing of engines, and by smoke, cinders, soot, dust and foul, noxious and offensive odors from defendant’s engines being operated on its tracks.

2. By odors from cars of fertilizer being moved about and left remaining on tbe terminal tracks.

3. By tbe maintenance and use of a freight and passenger depot so near tbe plaintiffs’ property that tbe smoke, odors, noise and vibrations from its engines and trains are annoying to tbe congregation and occupants of tbe parsonage.

4. By blocking Gilliam Street with trains very near tbe church and dwelling, and obstructing the passage of tbe members of tbe congregation desiring to attend church and tbe children going to Sunday school.

5. By loading and unloading circuses on defendant’s tracks near tbe plaintiffs’ property.

6. By running trains and shifting cars on Sunday near tbe plaintiffs’ church and at tbe time of their regular services.

Tbe complaint further alleges that, by reason of. the nuisances aforesaid, tbe said church and dwelling have been greatly and most seriously damaged as a place of worship and for a residence, to-wit, damaged in the sum of $5,000.

Tbe plaintiffs do not seek to enjoin defendant from tbe use of its terminal station, but to recover permanent damage, once for all, for tbe diminution in tbe value of their property, caused by tbe propinquity of tbe terminal and tbe manner of its use. It is alleged that tbe defendant acquired its terminal property by purchase, and not by condemnation. It is immaterial, so far as it affects tbe rights and liability of a railway corporation, bow it acquired its property, whether, by purchase or under tbe exercise of tbe delegated power of eminent domain. It bolds tbe same rights, is subject to tbe same governmental regulation, and incurs tbe same liabilities to tbe public in either case.

*403Tbe principal legal propositions presented on tbis appeal were very fully and recently considered by tbis Court in tbe Thomason case, 142 N. C., 322, and tbe law of nuisance, as applicable to railroads, is tbere elaborately discussed by Mr. Justice Connor.

Applying tbe principles of law, as there laid down, to tbe facts as stated in tbe complaint, we are of opinion bis Honor erred in overruling tbe demurrer.

Tbe several alleged acts charged against tbe defendant are well witbin its chartered powers, provided they are performed with reasonable care.

It is out of tbe question, in tbis advanced age, to apply to railways, our great arteries of commerce, tbe doctrines of tbe common law in relation to nuisances. As an eminent Judge has recently said, “A rigid enforcement of rules and definitions announced in an age that knew nothing of locomotives and blast furnaces would have stopped tbe wheels of commerce, put out tbe fires of furnaces and silenced tbe rattle of manufactories.” Simmons, C. J., Austin v. Terminal Co., 108 Ga., 687.

We live in an age of progress, which requires tbe modification of old rules and their judicious application to1 changed conditions. Personal interests and comfort must yield to public necessity or convenience. To deny to tbe defendant tbe use of its road and terminal would be to exclude all railroads from our cities and towns. Tbe extension of such a ruling would stop all machinery driven by steam, and restrain tbe use of coal because of its annoying smoke.

Tbere are thousands of manufacturing plants, mills and other kindred establishments in tbe cities and towns of tbis country, about which no complaint has been made in tbe courts, which would have been adjudged actionable nuisances according to tbe old view of such structures. We cannot afford to silence tbe bum of industry or destroy tbe city that has grown up around tbe loom. In tbe elevated railroad *404cases abutting property owners recovered permanent damage arising from smoke and noise, but upon tbe sole ground that the elevated structures invaded the owner’s easement of light and air and greatly interfered with means of access to his property. Speaking of those cases, the Supreme Court of Georgia says: “But in no case has the owner of property on a cross street or a parallel street, no matter how close to the elevated road, been held entitled to recover, so far as we have found. And yet it is almost certain, on a business proposition, that persons owning property abutting on cross streets have found their property depreciated in value as a result of the construction and operation of the elevated roads.” Austin v. Terminal Co., supra. In this complaint there is no allegation of any physical interference with plaintiffs’ property by defendant from which damage may flow, as in the elevated cases. It is, therefore, manifest, from an unbroken line of precedents, that the mere establishment and proper use of a freight and passenger station across the street-from plaintiffs’ property does not constitute an actionable nuisance. Having been established by authority of law, all damage that flows from its reasonable and proper use is damnum absque injuria. 2 Elliott on Railroads, 118; 2 Wood on Nuisance, sec. 753; Railroad and Banking Co. v. Maddox, 42 S. E. Rep., 321; 19 Am. and Eng. (1st Ed.), 923 and 924, and cases there collected.

And it further follows that injuries and inconveniences to those who reside near this terminal, from noises of locomotives, shifting of cars, loading and unloading freight, smoke, and the like, which result from the necessary and therefore proper use and conduct of the terminal, are not actionable nuisances, but are the necessary concomitants of defendant’s franchise. Wood Railroads, p. 722; Beseman v. Railroad, 50 N. J. Law, 235; Railroad v. Speer, 56 Pa., 325.

While we hold that a railway lawfully operated with reasonable care, however disagreeable it may be to the residents *405of tbe neighborhood, is not an actionable nuisance, we are far from holding that it cannot be so operated and conducted as to become one.

The Baptist Church case is a weighty and often cited authority illustrative of the lawful and unlawful use of railroad property. 108 U. S., 317. The railroad had located an engine house away from its business terminal, close under the eaves of the church windows, and had erected sixteen smokestacks, lower than the church windows, almost up against them and so constructed that the volume of smoke from each stack poured directly into the body of the church. The Supreme Court of the United States applied the law of nuisance, wholly independent of reasons of public policy and business convenience, for no such considerations required the construction of a roundhouse immediately under the eaves of a church. But in that case the Court holds that, for all usual and necessary noises and inconveniences occasioned by the operation of the railway, as such, in the discharge of its public duty, a property owner cannot recover. When railroads so conduct their operations that they needlessly and heedlessly cause suffering and inconvenience, their statutory authority will not protect them. Such grant of power does not give railway corporations an unbridled license to use their own property as they please without consideration for the rights and property of others. If it did, then, instead of being the servants of the public, they would be its masters. Railroad companies have been held liable for creating an actionable nuisance in using defective engines which scatter great and unnecessary quantities of sparks, cinders and smoke; for continued and unnecessary noises and disturbance from shrieking Avhistles and hissing steam; for maintaining their stations, depots and cattle yards in a filthy condition; for maintaining coal chutes and roundhouses at improper places and operating them so carelessly and noisily as to' create a nuisance. In such and other like contingencies their charters afford them no protection.

*406Speaking of a railway terminal becoming a nuisance, the Supreme Court of Georgia says: “Although properly constructed, its negligent and improper operation might produce noises, smoke, cinders, etc., largely in excess of what would result from its proper operation, and thus create specific nuisances which the plaintiff might enjoin.” Railroad v. Maddox, supra. In their complaint these plaintiffs have specified as actionable nuisances those general things which the defendant, under its charter, has the right to do, without stating in any particular wherein the defendant has done them injury in an unnecessary, improper and unlawful manner, thereby exceeding its chartered powers. The defendant may do these lawful acts in an unlawful manner; and if so, it may commit an actionable nuisance, but if it performs them in a proper manner, the act is lawful and not actionáble, although disagreeable. The complaint should have pointed out in a specific manner the particulars- wherein the defendant has exceeded its legal authority.

“A complaint which alleges negligence in a general way, without setting forth with some reasonable, degree of particularity the things done, or omitted to be done, by which the Oourt can see that there has been a breach of duty, is defective and open to demurrer.

“While pleadings are to be liberally construed, they are to be so construed as to give the defendant an opportunity to know the grounds upon which it is charged with liability.” Thomason v. Railroad, supra.

Eor instance, the complaint charges as a nuisance the running of trains and shifting of cars on Sunday, at the timé of the regular church services. As set out in the complaint, these acts do not, per se, constitute an actionable wrong, for the statute expressly confers upon railway companies the right to operate their passenger, express and mail service on Sundays, as well as freight trains run for the purpose of transporting fruits, vegetables, live stock and perishable freight. *407Anri when there are not sufficient cars of live stock or other perishable freights to m^be a complete train or section of a 'train, the company may add cars loaded with other freight to complete it. Eevisal, sec. 2613.

The loading and unloading of freight trains on Sunday is expressly prohibited, and consequently the shifting and moving of freight cars on that day would be unnecessary, unless they should be in the way of a passenger train, and this should be anticipated and guarded against as much as possible. The complaint should specify wherein the defendant is violating the statute,, and wherein it is creating an unnecessary and unjustifiable noise and disturbance on the Sabbath- Day.

In our view of the law the plaintiffs cannot -in any event recover permanent damage for the depreciation of their property by reason of the establishment of the railway terminal on Gilliam Street, opposite it. If they can allege and prove unlawful and unwarranted acts and conduct by defendant in the management of its terminal which amount to a nuisance, they may enjoin the further commission of such acts, as well as recover such temporary damage as their property has sustained thereby. As trustees they could not recover for any physical suffering upon the part of their pastor, his family or the individuals composing the congregation.

As the case is to be remanded, we will direct that plaintiffs have leave to replead and file another complaint, if so advised, and if not advised, the case will be dismissed.

Keversed.