I dissent from the majority opinion as to the city's appeal. It holds, as I *Page 363 understand, that while the respondents' property has been damaged four hundred dollars, as the trial court found, nevertheless such damages are damnum absque injuria. This class of cases has its difficulties and several of our most recent opinions upon this general subject, as well as the majority opinion in the present case, have been largely devoted to the studious if not delectable task of arguing away or criticising or distinguishing one or more of our many cases. Some of the cases deal with nuisances while others with damages to property. In all of them, however, I do not find any clear denial of the rule that the lawfulness of the power or the care with which it is exercised by the one complained of do not justify the breach of any constitutional guaranty for the protection of the citizen or his property. Under the provision of the constitution that private property shall not be taken or damages for public or private use "without just compensation having been first made or paid into court for the owner" a municipality may put its property to any use it sees fit whether it employ the most approved appliances or not and whether it conducts its business in the most careful and skillful manner or not so long as it does not thereby materially or substantially damage the property of another. The constitution makes no distinction as to the manner of doing the damage or of motive, nor of the particular purpose for the taking of private property in case it is taken. One's lot or parcel of land worth four hundred dollars actually taken and appropriated is no more sacred against the doctrine "for the good of the public" than damage to that same extent caused to property not taken. One, such as a city, may use his property in a way, such as an electric substation, so as to substantially damage a given piece of property which at the same time on account of intervening distance or *Page 364 some other barrier would be found and held as a matter of fact not to damage other property.
Suppose the establishment and operation of such an electric substation damaged private property situated within a foot of it to the extent of one thousand dollars, could there be no recovery? The principle involved in that kind of a case is precisely the same as the principle in this one — that is substantial damage as a matter of fact. Had the majority opinion said that the so-called damages were chimerical and fanciful only and not a fact the situation would be different, there would be no legal remedy. But such is not the case. The situation here is one wherein a strictly residential section of the city has been invaded by an establishment, useful and necessary it is true, to the substantial damage of respondents' property as a matter of fact, thus presenting a clear perception of the guaranty of the constitution which in my opinion should not be ignored. *Page 365