Concurring Opinion.
Manning, J.I concur in the decree, but I go further than the opinion of the Court seems to warrant, and there are parts of it to which I do not assent.
That steam trains on that part of Canal street are a nuisance, offensive to eye, ear, and smell, disagreeable at all times, and intolerable in onr climate for one-half of the year, should seem scarcely questionable. We are told the purest oil is used on the running gear and that it emits no smell; that anthracite coal is burned that gives a whitish *1072smoke perceptible only in early morning; that no whistles are blown', and bells only tapped. If, with all these precautions, the air is laden often with stench and smoke, and the clatter drowns all fainter sounds, what would be the lamentable condition of these plaintiffs if full rein were given to the steam train to expend all its capacity for annoyance. The evidence of the kind and extent of the nuisance produced by these trains is ample, but if it were less complete, how can anyone shut out from sight and hearing the rattling of cars over iron rails, the puffing of laboring engines, the bell taps that announce the going out and coming in of a long line of carriages every fifteen minutes of some days, noises which, are prolonged into the night and until the small hours of the morning.
And what is the excuse for inflicting this perpetual nuisance upon the inhabitants of the very heart of the city ? The promotion of trade and health! The promotion of trade by a pleasure train that has. no freight, and the promotion of health by putting the terminus only three blocks away from its present situs. One hundred and seven firms and 'individuals sign a petition to the city council to continue this nuisance, a large number of them between the terminus and the river and therefore unaffected by it, and sign it with thé same indifference and facility that they would sign a petition for the pardon of a criminal, or for the execution of a saint, and these assert the great advantages derived ■from running these dangerous trains exceed the trifling inconveniences resulting from them. The comfort, freedom from stench and noise, of 'lióme life, and the safety of pedestrians in an often crowded thoroughfare must be sacrificed because of the great advantage of selling a few dollars worth of goods!
It is said individual comfort and convenience must give way to the public good, but what is the public good ? Is the promotion of the pecuniary interest of a private corporation the public good? Is the conferring upon and the enjoyment of valuable franchises by associated private individuals, the promotion of the public good ? The overgrown power of great corporations almost always ha? its origin in the employment of catch-words that delude the popular imagination, and cast a glamour over what is hidden beneath. How far private rights áre to be ignored in the pursuit of this ignis fatuus, which for the nonce'is assumed to be the public good, does not yet seem to be clearly determined, but it is certain that the authorization of an act even by the legislature does not prevent it from being a private nuisance. Woods-on Nuisances, 788. One has as much right to protection from noxious gases and mephitic odors transmitted through the air, as to protection *1073from a trespass upon his soil, and there is no good reason why courts should not guard the one as jealously as the other.
These considerations would be worthy of attention even if the defendant Company had the right to run steam trains over this part of Canal street, but it has none whatever. Apart from the dedication to public use of this central space, which the plaintiffs’ counsel have presented with ingenuity, it appears the City sold the lots, or some of them, now owned by the plaintiffs, fronting on this street. Thisspaee was at one time converted into a promenade, with shelled walks, shaded by trees, and protected from the intrusion of vehicles by ornamental chains and posts. It is well stated in the opinion of the Court, as was said in French’s case, 2 Ann. 87, these parties bought with reference to the reservation of this central space for public use, and where property has been thus set apart and enjoyed as such, and private and individual rights have been acquired with reference to it, it is an estoppel in pais which binds the original owner. Sarpy vs. Municipality, 9 Ann. 597.
It is of no consequence that the City acquired this central space after she had sold the bordering property. There is no reason why a municipal corporation may not beheld to the same restrictions and responsibilities as a private individual in its contracts. • It received for the property it sold a larger price, because in its front was a wide street which assured ventilation, the middle of which was not used for the passage of horses or vehicles, and it should not gain by the existence of a condition of its property which attracted and induced purchasers, and when it acquires the object which formed the attraction, so change its use as to destroy that attraction, and even convert itinto a nuisance.
The right to run these steam trains is claimed under an Act of the General Assembly incorporating the New Orleans, Metairie & Lake Railroad Company, Acts 1869, p. 205, the defendant being the assignee and successor of the incorporators, and also under an Act of July 1, 1878, between the City and the defendant, wherein the right to run cars with steam dummy engines, is said to be recognized.
No such right is recognized by that Act. The use of a steam propeller was not contemplated at all, and it is the use of steam as a propeller of which the plaintiffs complain. The purpose of the organization is exhibited by the specifications of the contract with the City, and it was to construct and maintain a railroad within the City to be propelled by horse-power. It was a tramway rather, than a railroad.
*1074Unquestionably that was its original franchise, and it can only exercise a greater and different franchise by derivation of authority since the grant. It has none. The pretension that it acquired such larger franchise through purchase of the Metairie & Lake Road franchise, falls before the declaration of this Court that it is the State’s prerogative to confer franchises, and they cannot be transferred without the consent of the grantor. Spanish Fort R. R. Co. vs. Delamore, 34 Ann. 1225; and to like effect, Thomas vs. R. R. Co., 301 U. S. 83.
Nor is the defendant’s claim of a more satisfactory origin when it is attempted to be derived from the City Ordinance of August, 1876, granting permission to establish a stand for the cars on the neutral ground on Canal between Baronneand Carondelet streets, revocable at the pleasure of the Council. It was wisely revoked in June, 1880, and the stand was removed to Basin street, but the petition of the one hundred and seven, like the famous charge of the six hundred at Balaclava, won the day, and the obnoxious stand was reinstated in March, 3881.
Tho authority of the Council to confer this privilege upon the railroad is said to be derived from the charter of 1870, in force at the time of the grant, under that clause giving power to “regulate the proper government of carts, drays, etc., freight, locomotive, passenger and street cars, which run in the streets, and within the limits of tho City.”
The flimsiness of this pretence is apparent when it is considered that the power to regulate the government of railway ears can in no sense include the power to grant a franchise. The regulation of cars, etc., is simply an act of ordinary administration. The grant of a franchise is an extraordinary act—the exercise of a power inherent in sovereignty —a power obtainable only by a concession from the sovereign, the terms of which are always strictly construed.
Even if a municipal corporation has authority from the sovereign to grant a franchise, it cannot so exercise it as to create a private nuisance for which there is no redress. The legislative grant is nota protection against an action for damages resulting from, the private nuisance. A fortiori is the defendant without protection and without excuse, since it has neither municipal authority nor legislative grant.
Rehearing refused.