dissenting:
I do not clearly understand the opinion of the court in this case. If it was intended to hold that, no matter what use the railroad company makes of its switch yards and sidings in the business district, and no matter what effect such use has upon the public safety and convenience and upon the use and enjoyment by neighboring owners of their property, the city council is powerless to stop it, I cannot agree to it. I know of no special rights or privileges possessed by common carriers which' authorize them to maintain a nuisance. It seems to me the proof in this case established that the use made by the railroad company of its switch yards and sidings in the heart of the city and across public streets where the travel was heavy was a nuisance. If this is correct, it would seem the situation could not be remedied by regulation. The remedy against nuisances, as-I understand it, is abatement,-—not regulation; and it seems apparent that no regulation short of abatement could relieve the situation in this case. Any regulation that would be effective would, it seems to me, prohibit the use of the yards and sidings for the purposes for which they are maintained. Certainly, as stated in the opinion, the sidings and yárds are not per se a nuisance but their use may become a nuisance. A building erected for a slaughter-house may not, in itself, be a nuisance but its use may make it one. The ordinance here involved does not attempt to deprive the railroad company of its right of wa.y or tracks, or of their use, except in the operation of switch tracks or sidings for the setting out, switching, storing of freight cars, making up- freight trains, and the loading or unloading of freight cars and freight trains within the business district. The mere declaration of the council that this constituted a nuisance was not conclusive. Defendant in error’s switch yards and tracks belong to that class of things which may or may not be nuisances, by reason of their locality, surroundings or the manner in which they are conducted and managed. That class of nuisances cannot be summarily abated by the municipality. . The validity of an ordinance declaring things in that class nuisances presents for judicial determination a question of fact. That the business of maintaining and operating switch yards and tracks is a lawful business and when established was not a nuisance, does not signify that it cannot become such by reason of changed conditions and surroundings. Authorities are abundant holding that many kinds of lawful business which as originally established were not nuisances have subsequently become so by reason of changed conditions and surroundings.
The rules of law upon this question which apply to those who are engaged in other lines of business are applicable to public carriers. The rule that every proprietor has the right to erect upon his property such structures as he pleases and use his property for such purposes as he sees fit is subject to the qualification that he cannot, by such use, deprive another person of the use and enjoyment of his property. That a railroad company is subject to this qualification was decided in the case of Wylie v. Elwood, 134 Ill. 281, where it was said: “Railroads are a public necessity and a public benefit. Many inconveniences and annoyances grow out of their operation which must be borne by the public. The passage of a train of cars upon the street of a city or town is necessarily attended with noise, with the emission of smoke, with detention at the. crossings, etc. No recovery can be had for injuries suffered from such causes. But a railroad company has the power to do certain things, which it has also the discretion to do in particular ways and at particular places. It needs grounds, upon which it may receive and discharge its freight and passengers. It may use its right of way for such purposes. Its discharge of a certain kind of freight at one place upon its right of way may work serious injury to property owners, while its discharge of the same at another place thereon may not produce any such injury. The selection of a locality, where damages are inflicted, in preference to one where damages will not be inflicted, cannot be said to be necessary to the ordinary and prudent operation of the road.”
In the above case the court cited Shively v. Cedar Rapids, I. F. & N. W. Ry. Co. 74 Iowa, 169, being an action against a railroad company by a property owner to recover damages on account of the maintenance of stock yards near plaintiff’s premises, the odors from which, it was alleged, made the premises almost uninhabitable1 and endangered health. The defense was that the yards were necessary to the operation of the road and that they were properly conducted. A judgment for plaintiff was sustained, and in the opinion the court said: “It is not shown that they [the odors] are unavoidable, nor does it appear that the yards might not have been located at another place where they would have met the necessities of the road and its patrons.”
Missouri, Kansas and Texas Railway Co. v. Anderson, 36 Tex. Civ. App. 121, was an action by the plaintiff to recover damages resulting from the maintenance of railroad yards near his dwelling. The court said, in part: “The fact that the business is a lawful one and is properly and carefully conducted is no defense where it occasions a nuisance; and especially is this the case where a different locality could have been selected, which, if done, no injury would have resulted.”
In City of Hickory v. Southern Railway Co. 141 N. C. 716, (53 S. E. Rep. 955,) the court said: “Railroads are chartered for the public convenience and are operated by the exercise of a public franchise. Such exercise must be subordinate to the public welfare, and they are subject to public regulations as to their charges and conduct. If they exercise their functions in such a manner as to become a public nuisance they are liable to damages or to injunctive relief. The operation of their freight business, growing rapidly, as it is shown to do, in the center of a large and growing town, will necessarily impede and render dangerous the circulation of the business from one side of the town to the other. It necessitates the keeping of many box cars on the side-tracks and their constant shifting up and down, cutting off the view of approaching passenger and, indeed, of other freight trains. The jury has found this dangerous, inconvenient and a public nuisance. Indeed, we might almost say it would be a matter of common knowledge. If there are any good reasons why the defendant should have resisted the application of the town authorities and should not rather have anticipated the public wishes and convenience by removing its freight depot to a more suitable location they do not appear in this record.” These general principles as to the relative rights of the railroad company and the city were not affected by the opinion delivered on a rehearing of that case, reported in 143 N. C. 451.
Plaintiff in error stated the fact to be, and offered to prove, that defendant in error owned a strip of land 200 feet wide in the corporate limits of the city, about two blocks south of its passenger depot, upon which no switch tracks were placed. On objection by defendant in error this proof was not allowed to be. made. In the opinion it is said plaintiff in error on the trial proved, not that the thing denounced by the ordinance,—the maintenance and use of the side-tracks,—was a nuisance, but that their use in a manner to cause obstruction and congestion of street traffic, danger to the public at street crossings and damage to property in the neighborhood was a nuisance. Further it is said: “The ordinance should be directed against the circumstances which are harmful, and not against the switch tracks, which are not.” If this means that the ordinance should have recited the effects or results from the operation of the switch yards and denounced those “circumstances” as a nuisance, it 'appears to me to.be unsound. There would have been no “circumstances” to denounce if the yards and tracks had not been used for the purpose forbidden by the ordinance. It was the resultant effect of that use that made the doing- of the things forbidden a nuisance, if it was a nuisance, just the same as the odors from a slaughter-house may make it a nuisance to operate it. But the ordinance did, in its preamble, denounce or recite the “circumstances.” After describing the territory embraced in the business district, the location of the streets and kinds of business carried on in said district by the inhabitants of the city, and the location of defendant in error’s switch yards and sidings in said district, it stated how the' switch yards and sidings were used, how the use of them interfered with and hindered people in the use of the streets, endangered life and safety, and how it interfered with neighboring owners in the use and enjoyment of their property. Reciting or denouncing the “circumstances” 'in the ordinance did not relieve plaintiff in error from the necessity of proving facts on the trial which would authorize it being held that the ordinance was reasonable. If the facts failed to show the use of the switch yards and tracks in the manner prohibited was a nuisance then the ordinance would be void for unreasonableness. The question presented -for decision by this action was whether the city council had exceeded its powers in declaring the use of the switch yards and sidings for the purposes mentioned in the ordinance a nuisance. After making the proof referred to in the opinion the city offered the ordinance. If the facts proved established that the use of the yards and sidings was a nuisance the ordinance was reasonable and valid, otherwise it was unreasonable and invalid. Plaintiff in error by its evidence laid before the court the facts which led it to adopt the ordinance. It seems to me this was the orderly and lawful method of procedure; that the ordinance is valid in form, and the question that should be decided by this court is whether, under the proof, the ordinance was a valid exercise of power by the council.
I think the judgment should be reversed for the refusal of the trial court to admit the ordinance in evidence.
Mr. Justice Vickers : I concur in the foregoing dissenting opinion of Mr. Justice Farmer.