Upon a Petition to Rehear, February 23, 1906.
Keith, P.:In the opinion delivered by the court when the judgment sought to be reviewed by this petition for rehearing was pronounced, it is said:
“The declaration sets forth a nuisance; the defendant justifies what it has done by pleading legislative authority for its acts.
“A public service corporation is to be considered in two aspects. It .has duties which it owes to the public, and which it must perform; it has other duties not of a public nature, which are incidental to those of a public character, in the performance of which it stands upon the footing of a private corporation. With respect to the duties of the first class, it may be said that in doing that which under the law it may be required to do, it cannot be considered as doing an unlawful act; and if a lawful act be done without negligence, any injury which it occasions is damnum absque injuria
This position is earnestly assailed in the petition for a rehearing, where it is broadly asserted that no such distinction *38between the public and private functions of a corporation exists, and that all is lawful which the Legislature authorizes to be done, although the authority conferred be not imperative, but merely permissive.
It may be that in the distribution of the duties of a public service corporation into those of a public and those of a private nature, the classification was inaccurate and unscientific, though it has the sanction of courts of the highest respectability. By other courts the same conclusion is reached by a consideration of the language used by the Legislature in the act of incorporation, and by its construction determining whether or not the law-making power intended to permit an act to be done, or to require its performance; to confer a privilege, or to impose a duty.
In the case of Fisher v. Seaboard Air Line Railway Co., 102 Va. 363, 46 S. E. 381, the position of this court is well stated in the syllabus. “A railroad company, acting under authority of law, whose road is constructed and operated with judgment and caution, and without negligence, is not liable to an adjacent land owner for damage resulting from the noises, jarring and shaking of buildings, dust and smoke, incident to the running of trains. Eo action lies for the loss or inconvenience resulting from doing an authorized act in an authorized way.” This is to be understood, of course, in the light of the facts presented in that record, where damages were claimed for the noises, jarring and shaking of buildings, dust and smoke incident to the running of trains. We were of opinion that in the absence of negligence, no damages could be recovered, for the reason that the road was obliged to run its trains, which could not be done, whatever the degree of caution exercised, without the inconveniences and injuries enumerated.
*39In Makely v. Southern Railway Company, complaint ivas made of the operation of trains of the defendant company, and of a power house maintained by it for the purpose of lighting the various buildings in ‘its yards. There was a bill praying an injunction filed in the Circuit Court of Alexandria, which the learned judge of that court refused, but without prejudice to the right of plaintiff to seek her remedy at law. There was no question made as to the solvency of the railway company, or its ability to respond in any damages which might be adjudged against it. We concurred with the judge of the Circuit Court in the opinion, that, at least in the preliminary stages of the case, before the right ha.d been established at law, it would be improper to enjoin the defendant company. And just here it may be proper to state, that while upon a petition for a writ of error or appeal, this court is required to grant the writ prayed for unless the decision called in question be plainly right, we should not overrule the decision of the lower court and grant an injunction which it has refused, unless the error in refusing it be manifest.
We have mentioned the Fisher Case and the Makely Case, not with any view to vindicating our consistency, but because we felt that it would be well to clear up any doubt that might exist as to the attitude of this court with respect to those decisions.
Coining back to the petition for rehearing, wre find the position of the petitioner thus stated: “The application of this doctrine of ‘private capacity’ is wholly inconsistent with the principles enunciated in the Fisher Case. We think that the fact that the doctrine is wholly erroneous can easily be demonstrated by stating it in the form of a syllogism, thus:
“The injuries done to property without negligence by a public service corporation, for which it will be held liable, are those done by it in its private capacity.
*40“All injuries done to property without negligence by a public service corporation are done by it in its private capacity (i. e., by the-means and methods employed).
“Therefore, a public service corporation is liable for all injuries to property done by it without negligence.
“The conclusion is manifestly incorrect, and at least one of the premises must therefore be erroneous. The second premise we think we have demonstrated to be correctly stated—that is, that injuries to property are the result of the means and methods employed, and not of the public service performed. The error lies, therefore, in the first premise.
“The vice in this premise, and the simple answer to the various illustrations which we have given above, is demonstrated by a statement of the true principle, which is that a public service corporation, acting without negligence, is not liable for injuries which are the necessary consequences of the performance of its authorized functions. And we need go no further in search for authority for this position than the Fisher Case itself, where the court, quoting from Pollock on Torts, said: ‘It is settled that no action can be maintained for loss or inconvenience which is the necessary consequence of an authorized thing being done in an authorized manner.’ ”
We must again advert to the principle that all opinions are to be considered in the light of the facts to which they apply, for the transition from an authorized to an unauthorized act-—from that which is lawful to that which is unlawful—is oftentimes by easy and almost imperceptible gradations, so that in the enunciation of a principle the eye must always be kept upon the precise facts upon which it is to operate.
Almost all the questions upon which the law is doubtful or obscure arise at the vanishing point between contradictory and irreconcilable principles, and mark the effort “to deduce bar*41mony from the reciprocal struggle of discordant powers.”— Búrlce.
Law is not an exact science. It has no invariable standard by which rights may be measured. It does not submit to inflexible rules of logic, nor can it, in its application to the varied affairs of men, always clothe itself in the form of a syllogism; and while we might hesitate to go to the full length of the view expressed by the great moralist we have just quoted, it is to a large extent true that “every human benefit and enjoyment, every virtue and every prudent act, is founded on compromise and barter.”
We should not, therefore, have been disposed to abandon our position, even though it had failed when subjected to the syllogistic test; but we are not prepared to admit that the test has been correctly applied. We do not admit the truth of the minor premise—we do not admit that all injuries done to property without negligence, by public service corporations, are done by them in their private capacity.
All injuries done to property, without negligence, by a public service corporation for which it will be held liable, it may, perhaps, be conceded are done by it in its private capacity; but there are injuries done by it in its public capacity for which it will not be held liable, and in that distinction is to be found the very gist of this controversy.
Bor can we concur in the answer which the j>etitioner suggests to the illustrations which it had given. We cannot admit that a public service corporation, acting without negligence, is, under all circumstances, irresponsible for injuries which are the necessary consequence of the performance of its authorized functions. There must be something more than authority to do the act complained of. It must be an act which the corporation is required to perform—a duty it owes and which has been *42imposed upon it by tbe legislative act granting tbe charter by which it exists—or at least it must appear that the particular act complained of and immunity from its consequences were within the contemplation of the Legislature. It is true that in Pollock on Torts, quoted in the Fisher Case, supra, it is said that “no action can be maintained for loss or inconvenience which is the necessary consequence of an authorized thing being done in an authorized manner”; but Pollock also says, in his second edition, at p. 158, “A railway company is authorized to acquire -land within specified limits, and on any part of that land to erect workshops. This does not justify the company, as against a particular householder, in building workshops so situated (though within the authorized limits) that the smoke from them is a nuisance to him in the occupation of his house.” The two statements by the same author are apparently opposed to each other, and yet may he in entire harmony as applied to varying conditions of facts.
In Managers of the Metropolitan Asylum District v. Hill (1880-’81), 6 App. Cas. L. R. 193, the Metropolitan Poor Act, authorizing the formation of districts and district asylums for the care and cure of sick and infirm poor, created corporations .for that purpose, and gave authority to the Poor Law Board to issue directions to these corporations, enabled them to purchase lands and erect buildings for the purposes of the act, and made the rates of parishes and unions liable for the outlay thus incurred. But it does not by direct and imperative provisions,, order these things to be done, so that if, in doing them, a nuisance is created to the injury of the health or property of persons resident in the neighborhood of the place where the land is purchased or the buildings erected, it does not afford to these acts a statutory protection. And, therefore, where such nuisance was found as a fact, it was held that the district hoard *43could not set up the statute, nor the orders of the poor law hoard under it, as an answer to an action, or to prevent an injunction issuing to restrain the hoard from continuing the nuisance; and in continuing his opinion Lord Blackburn states this principle: “On those who seek to establish that the Legislature intended to take away the private rights of individuals, lies the burden of showing that such an intention appears by express words or necessary implication.” And per Lord Watson it was said: “Where the terms of a statute are not imperative, but permissive, the fair inference is that the Legislature intended that the discretion, as to the use of the general powers thereby conferred should be exercised in strict conformity with private rights.”
That case finely illustrates the effect of a statute merely permissive in its terms.
In London, Brighton & South Coast Ry. Co. v. Truman and others, L. R. 11, App. Cas. 45, a railway company was authorized, among other things, to carry cattle, and to purchase by agreement, in addition to the lands which they were empowered to purchase compulsorily, any lands not exceeding in the whole fifty acres, in such places as should be deemed eligible, for the purpose of providing additional stations, yards, and other conveniences for receiving, loading, or keeping any cattle, goods, or things conveyed or intended to be conveyed by the railway, or for making convenient roads or ways thereto, or for any other purposes connected with the undertaking which the company should judge requisite. The company were also empowered to sell such additional lands and to purchase in lieu thereof other lands which they should deem more eligible for the aforesaid purposes, and so on from time to time. The act contained no provision for compensation in respect of lands so purchased by agreement. Under this power the company, some years after *44the expiration of the compulsory powers, bought land adjoining ■one of their stations and used it as a yard or dock for their cattle traffic. To the occupiers of houses near the station the noise of the cattle and drovers was a nuisance which, but for the act, would have been actionable. There was no negligence in the •mode in which the company conducted the business. Held: 'That the purpose for which the land was acquired being expressly authorized by the act, and being incidental and necessary '•to the authorized use of the railway for the cattle traffic, the ■company were authorized to do what they did, and were not hound to choose a site more convenient to other persons; and that the adjoining occupiers were not entitled to an injunction to restrain the company, distinguishing between the case of Metropolitan Asylum Dist. v. Hill, just cited. Among those who delivered opinions in this case was Lord Blackburn, from whom we have just quoted, who says, in part: “I do not think there can be any doubt that if on the true construction of a •statute it appears to be the intention of the Legislature that powers should be exercised, the proper exercise of which may ■occasion a nuisance to the owners of neighboring land, and that 'this should be free from liability to an action for damages, or an 'injunction to prevent the continued proper exercise of these powers, effect must be given to the intention of the Legislature,” again resting the case upon a proper construction of the act of incorporation. In this case the House of Lords reversed the •decisions of the Court of Appeal, and of North, J., which is to be found in 25 Ch. Div. 426. It undertakes to distinguish, while it does not overrule Metropolitan Asylum Dist. v. Hill, 6 App. Cas., supra; and seems to rest upon the express terms of the Act of Parliament under consideration. It is at most merely persuasive authority, and if it decides that a merely permissive authority, from the Legislature confers complete im*45rmnn'ty from acts which, constitute a nuisance, if not negligently performed, it would he irreconcilable with other English cases of high authority—indeed of equal authority with itself— with the decisions of the Supreme Court of the United States,, and with those of State courts, to which we shall presently advert.
In Cogswell v. Railroad Co., 103 N. Y. 10, the syllabus is as-follows: “Whether the Legislature can authorize a railroad corporation to maintain an engine house, under circumstances; which, if maintained by an individual, would, by the common law, constitute a nuisance to private property without providing-compensation, quaere.
“But if this should be conceded, nevertheless the statutory-sanction which will justify an injury by a railroad corporation to private property without making compensation therefor, and without the consent of the owner, must be express or 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 y it may not be presumed from a general grant of authority.
“WTiere the terms of a statute giving authority to such a corporation are not imperative, but permissive, this does not confer-license to commit a nuisance, although what is contemplated by the statute cannot be done without.”
In Bohan v. Port Jervis Gas-Light Company, 122 N. Y., at p. 18, 25 N. E. at p. 246, 9 L. R. A. 711, it is said that “although the acts complained of are inseparably connected with the carrying on of the business itself, and the-resulting damages-a necessary consequence, if those acts constitute a nuisance perse, it is not necessary to show negligence in order to sustain a.. recovery.
*46“Every person is- bound to make a reasonable use of Ms property, having respect for his neighbor’s right; a use which produces destructive vapors and noxious smells, resulting in material injury to the property and the comfort of those dwelling in the neighborhood, is not reasonable, and is a nuisance per se.
“As a general rule, corporations authorized by statute to carry on a business, although it may be of a quasi public character, are under the same obligations to make a reasonable use of their property and to respect the rights of others as are citizens.
“While the Legislature may authorize acts, which would otherwise be a nuisance, when they affect or relate to matters in which the public have an interest or over which they have control, the statutory authority which affords immunity for such acts must be express, or a clear and unquestionable implication from powers expressly conferred, and it must appear that the Legislature contemplated the doing of the very act which occasioned the injury.”
This whole subject is considered by the Supreme Court of the United States in Baltimore & Potomac R. Co. v. Fifth Baptist Church, 108 U. S. 317, 27 L. Ed. 739, 2 Sup. Ct. 719, which was decided in 1883, and has met with general approval. The Baltimore & Potomac Railroad Company was authorized by Act of Congress to lay its track within the limits of the city of Washington, and to construct other works necessary and expedient to the proper completion and maintenance of its road. It erected an engine house and machine shop on a parcel of land immediately adjoining the church, and used them in such a way as to disturb, on Sundays and other days, the congregation assembled in the church, to interfere with religious exercises therein, break up its Sunday schools, and destroy the value of the building as a place of public worship. Suit was brought against the railroad company to recover damages, and among *47other defenses the company relied upon statutory authority; and its counsel undertook to maintain that “no action will lie and no recovery can be had for doing that which the law authorizes the party to do, and that cannot be adjudged a nuisance and be held unlawful which the law declares to be lawful.” Answering that contention, Mr. Justice Field says: “The authority of the company to construct such works as it might deem necessary and expedient for the completion and maintenance of its road did not authorize it to place them wherever it might think proper in the city, without reference to the property and rights of others. As well might it be contended that the act permitted it to place them immediately in front of the President’s house or of the Capitol, or in the most densely populated locality. Indeed, the corporation does assert a right to place its works upon property it may acquire anywhere in the city. Whatever the extent of the authority conferred, it was accompanied with this implied qualification, that the works should not be so placed as by their use to unreasonably interfere with and disturb the peaceful and comfortable enjoyment of others in their property. Grants of privileges or powers to corporate bodies, like those in question, confer no license to use them in disregard of the private rights of others, and with immunity for their invasion. The great principle of the common law, which is equally the teaching of Christian morality, so to use one’s property as not to injure others, forbids any other application or use of the rights and powers conferred.
“Undoubtedly, a railway over the public highways of the District, including the streets of the city of Washington, may be authorized by Congress, and if when used with reasonable care it produces only that incidental inconvenience which unavoidably follows the additional occupation of the streets by its cars with the noises and disturbances necessarily attending their *48use, no one can complain that he is incommoded. Whatever consequential annoyance may necessarily follow from the running of cars on the road with reasonable care is damrmxm absque injuria. The private inconvenience in such case must be suffered for the public accommodation.”
It is said in the petition that the latter part of this quotation is a dictum. We hardly think so; but even if it were, it is the dictum of a judge whose great ability entitles his every utterance to the highest respect, and is sanctioned by the concurrence of the entire court. We may safely consider that opinion as expressing the fixed views of the Supreme Court of the United States upon the questions discussed.
The legislative authority relied upon in this case (Acts 1897-’98, pp. 495 and 1020, respectively) is as follows:
At section 2, page 496, occurs the following language: “The said company shall have power to construct, lease, purchase or acquire by consolidation with any other company or companies, and operate and maintain in the city or county of Norfolk, or both, and in any other city, town or village in the said county, suitable works, machinery and plants for the manufacture of electricity, and for the sale and distribution of the same; and it shall have power to sell and distribute the same for public and private illumination, for heating, for power and for any other purposes which the same may be used for, and it shall have power to do such acts and things, and conduct such enterprises as are convenient in connection with or incidental to the enjoyment of the powers hereinabove conferred, and may, with the consent of the proper authorities of the city of Norfolk, and of such other city, or town, or county as are named above, use the streets and roads thereof for laying its mains, pipes and wires and erecting its poles.”
And at section 3, p. 1020, it is declared that “The said company is authorized to promote, establish and maintain the bo si*49ness of a general railway and electrical company. To erect, maintain and operate plants in this State for the generation of electricity and the supply of electric current for its own use and for sale to persons, natural or artificial,” etc.
In these quotations is found the sole authority of the defendant, to permit or to require, to excuse or to justify it in the performance of the acts complained of in this suit. The. case is, therefore, plainly to he classed with B. & P. R. Co. v. Fifth Baptist Church, supra, and other cases which we have cited, in which the effect of legislative authority has been discussed. It will he seen that the language is not imperative, hut permissive, and that it does not confer statutory sanction for the commission of a nuisance in any way whatever, and' most assuredly cannot he said to confer it in express terms, “or hy clear and unquestionable implication from the powers given,” so that it cannot he fairly said that “the Legislature contemplated the doing of the very act which occasioned the injury, and immunity is not to he presumed from a general grant, of authority.”
But it is said that the decision in this case, if permitted to stand, will “practically debar the use of many of the most important and developing features of our modern growth.”
It would he a source of regret if, in the administration of justice hy the establishment and enforcement of sound principles, the prosperity of our people should he hindered or checked, but it would he not only a source of regret, hut of reproach, if material prosperity were stimulated and encouraged hy a refusal to give to every citizen a remedy for wrongs he may sustain, even though inflicted hy forces which constitute factors in our material development and growth. Courts have no policies, and cannot permit consequences to influence their judgments further than to serve as warnings and incentives to thor*50ough investigation and careful consideration of the causes submitted to them. Those duties being faithfully performed, courts may await the result with patience, if not always with confidence, and say with the great Lord Mansfield, “Fiat justiüa, ruat coelum .”
Reversed.
Rehearing denied.