
    The People of the State of New York, Respondent, v. The Transit Development Company, Appellant.
    Second Department,
    March 5, 1909.
    Nuisance — evidence — corporation prosecuted for maintaining public nuisance may show relations' with incorporated electric railroad — public and private nuisance defined — right of railroad to ' delegate powers to subsidiary corporation.
    A business corporation organized for the purpose of supplying electric power for railroads when prosecuted for maintaining a public nuisance by burning hard coal, particles Of which emitted from its smokestack blew into houses in the locality, is entitled to show that all its capital stock is owned by. a duly-incorporated railroad company, to which it sells its power at cost, and that it is not practicable for the railroad to get its power elsewhere.
    Such evidence is admissible to show that the inconveniences suffered by the public were counterbalanced by the public advantages accruing through the operation of the electric railroad.
    Public and private nuisances defined.
    When the Legislature authorizes the organization of a corporation to construct and operate electric roads in cities, it must be deemed to have authorized the erection of power plants in localities where annoyance to private persons may be caused.
    Hence, although the Legislature cannot authorize the taking of private property without due compensation, where the right to erect a power station is con ferred by the Legislature, it cannot be deemed a public as distinguished from a private nuisance.
    Bights of action in cases of private and public nuisances and the right of quasi public corporations to delegate their power to subsidiary corporations discussed per Miller, J. -
    Appeal by the defendant, The Transit Development Company, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the cleric of said county on the 1st day of November, 1907, upon the verdict of a jury, convicting the defendant of maintaining a public nuisance in violation of section 385 at seq. of the Penal Code, and als'o from an order entered in said clerk’s office on the 31st day of January, 1908, denying the defendant’s motion for a new trial:
    
      Edward W. Hatch [George D. Yeomans and Charles L. Woody with him on the brief], for the appellant.
    
      Robert H. Elder [John F. Clarke, District Attorney], with him on the brief ], for the respondent.
   Miller, J.:

The defendant is a domestic corporation, organized under the Business Corporations Law, for the purpose, among others, of carrying on business of general contractors, including the contracting with other corporations and persons'for the supply of power or for the construction, equipment or improvement of railroads, bridges, wharves, tunnels and subways and to carry out such contracts-.” It maintains ah electric power plant on the river front at Kent and Division avenues, in the borough of Brooklyn. The People’s evidence tends to show that small flakés or particles of hard coal are emitted from its smokestacks, fall upon passersby, and are blown or sifted into the houses within a given radius. A gas plant across the street and other manufacturing plants in the vicinity burn large quantities of coal daily, The defendant’s evidence tends to show that its plant was suitably located, was equipped with the best up-to date devices, and was properly run; that, not being permitted to burn soft coal, it burned the only other coal commercially practicable for it to use ; and that at the time of the trial it was installing at large expense a device which, though new for that use, was expected greatly to reduce, if not entirely to- prevent, the emission of cinders from its smokestacks. It offered in evidence the certificates of incorporation of the railroad companies comprising the Brooklyn Rapid Transit system, and it offered evidence tending to prove the relations existing between them and it; that the Brooklyn Rapid Transit Company owned all of its capital stock ; that it sold power only to them and at cost, and that it was not .practicable for them to get the power elsewhere. All of that evidence was excluded.

The defendant contends that the railroad corporations have .legislative permission to maintain at suitable and convenient places the necessary power plants to run their roads, that they may contract with another to do that for them, and that the permission given them devolves on the one with whom they contract. The learned district attorney contends that as the Legislature has not expressly-authorized this particular plant to be run at the place and in the manner disclosed, neither the defendant nor the railroad companies have permission to run it.

"While there are expressions in some opinions, not necessary to the point actually involved, tending to support the proposition contended for by the district attorney, no case is cited expressly holding that to be the law of this State, but the contrary has been decided. The actual authority for the proposition is the case, of Managers, etc., v. Hill (L. R. 4 Q. B. 433; L. R. 6 App. Cas. 193). The reason for the decision in that case was the absence of any provision in the act for compensation to persons whose rights should be invaded, which was regarded, as expressed by Lord Blackburn, as a reason, though not a conclusive one, for thinking that the intention of the Legislature was, not that the. thing should be done at all events, but only that it should be done, if it could be done, without injury to others.” But our Legislatures, unlike Parliament, are subject to constitutional limitations, and are powerless to authorize a taking of private property, even for a public purpose, without making compensation. (Muhlker v, Harlem R. R. Co., 197 U. S. 544.) The question as to what constitutes a taking and what results only in consequential damages is not material to the present discussion. "When our Legislature'authorizes a thing to be done which may cause injury to private persons, it cannot be supposed that it was intended to be done without making compensation; and where permission is given a corporation having the power to take property by the right of eminent domain it must be supposed that the intention was that it should acquire the necessary rights by the exercise of that power, if not by contract. At any rate, the reason for requiring explicit authority of Parliament for the particular act, does not apply in this country. However, it is undoubtedly the law that the act, for the doing of which legislative authority is claimed, must have been within the contemplation of the Legislature, and either expressly or by necessary implication permitted by it. (Cogswell v. N. Y., N. H. & H. R. R. Co., 103 N. Y. 10; Bohan v. P. J. G. L. Co., 122 id. 18; Morton v. Mayor, etc., of N. Y. 140 id. 207, Booth v. R., W.& O. T R. R. Co., Id. 267; Garvey v. L. I. R. R. Co., 159 id. 323; Delaware, L. & W. R. R. Co. v. City of Buffalo, 158 id. 266; Sadlier v. City of New York, 104 App. Div. 82; 185 N. Y. 408.) It should be observed that these were all private suits.

Public, not private, rights are involved in this case. 'There can be no doubt that the railroad corporations have legislative permission to do what is necessary for the running of their roads in the city, now borough, of Brooklyn, for that lias' been expressly decided. (Brooklyn Heights R. R. Co. v. City of Brooklyn, 152 N. Y. 244. See, also, Bennett v. L. I. R. R. Co., 181 id. 436; Friedman v. N. Y. & H. R. R. Co., 89 App. Div. 38.) When the Legislature authorized the organization of corporations to construct and operate electric roads in cities it, of course, contemplated the construction of such roads as exist in the borough of Brooklyn. In view of the location of this city and of its rapid growth, it must have been within the contemplation of the Legislature that power plants would have to be located where possible annoyance or discom fort to private persons might be caused. That did not authorize the taking of private property without making compensation, but it prevented the thing authorized from being a public nuisance. (See People v. N. Y. Gas Light Co., 64 Barb. 55.) In Baltimore & Potomac R. R. Co. v. Fifth Baptist Church (108 U. S. 317) the court, per Mr. Justice Field, quoted with approval from Sinnickson v. Johnsons (2 Harr. [N. J.] 151) the following: “It may be lawful for him [the grantee of the power] and his assignees to execute this act, so far as the public interests, the rights of navigation, fishing, &c., are concerned, and he may plead, and successfully plead, the act to any indictment for a nuisance, or against any complaint for an infringement of a public right, but cannot plead it as a justification for a private injury which may result from the execution of the statute.”

However, the defendant has been endowed only with the powers which any individual may exercise and can claim from its certificate of incorporation no greater rights. It is a mere accident that the railroads are its only customers, if that be the fact. Aright specially granted to a g-Mimqmblic corporation cannot be devolved by it upon an individual. It must be presumed that the Legislature intended that the right should be exercised by the one to whom it was granted. Permission to own and run the entire system might as well be devolved as permission to own and run any part of it. The railroads could have acquired under the power of eminent domain the site for this power plant and the property rights infringed by its maintenance, a cogent reason for thinking that the railroads have legislative permission to maintain it.' But the defendant had no such power, and there is as much reason for saying that the power of eminent domain to acquire the site could be devolved as that the permission to maintain the plant upon the site‘when acquired could be. The cases of Benner v. A. D. Co. (134 N. Y. 156), Bates v. Holbrook (171 id. 460) and similar cases;are not in point. In those cases tile-defendants contracted to do public work, directed.by the Leg-, islature to be done; they obtained their permission, not by devolution, but directly from the public authorities: authorized to make the contract; Moreover, all of said corporations could not give the defendant the right to generate at one place the' power which they might separately have tire right to generate at different places. Of course, we are not advised of-what the proof might show respecting the right of the Brooklyn Rapid Transit, Company to operate the. entire system as one road or what the fact respecting such operation-may be; but in any view of the case the defendant cannot shield itself behind legislative permission.

However, it does not follow that the said evidence was properly .excluded. It is- important at this, point to observe the distinction between public and private nuisance. Blaekstone.defines “public or common nuisances ”• ;td be those “ which affect the public, and are an annoyance to all the king’s subjects.;”1 and “ private nuisances” to he “ anything done to the hurt or annoyance of the lands, temm ments, or hereditaments of another;” Á public nuisance is a thing which, “ in its nature, or its consequences, is a nuisance, an injury .or a-damage to all persons who come within the sphere of its operation, though it may be in greater or less degrees ” (Soltau v. DeHeld, 9 Eng. L. & Eq. 104, 111); a nuisance is public “when it affects the rights enjoyed by citizens as part of the public; as the right of navigating a' river, or traveling on a public highway; rights to which every citizen is entitled.” (King. v. Morris & Essex R. R. Co., 18 N. J. Eq. 397, 399.) Hpon- first examination of sections 385 and 386 of the Penal Code, it may seem that the Legislature intended to change the law. Those sections are taken from sections 430 and 431 of the draft code, prepared by the Field Commission and submitted to- the Legislature in 1865. It is evident from the report of the commission that they intended only to codify and harmonize existing laws. The four subdivisions of section 430 are supported by a note, containing numerous citations, and in the note to section 431 the reason for substituting the words “a- considerable number of persons” for the words “the whole community or neighborhood,” found in section 1572 of the draft civil code, then prepared, was stated to be to avoid uncertainty; and it was said, “ It may be doubtful in some cases, whether the persons affected by an obstruction in a navigable stream, for instance, form what can be called a neighborhood,” thus showing the intention to retain the idea of a common nuisance, as distinguished from private nuisances, suffered by a determinate number of persons. The first sentence of said section 385 is, “A public nuisance is a crime against the order and economy of the State * * The Court of Appeals, per Martin, J., say, in Ackerman v. True (175 N. Y. 353, 360): “ It is well established by the decisions of this court that interferences with public and common rights create a public nuisance.” It is elementary that a private person cannot prosecute a suit for a public nuisance; though he may suffer injury, it is common to the public and can only be redressed by the State, either by indictment or by a suit to abate the nuisance. Though, where an individual suffers peculiar or special damage, not common to the public, the nuisance is as to him private, and he may have his action for damages or, in a proper case, may invoke the equity power of the court. (See Doolittle v. Supervisors of Broome Co., 18 N. Y. 155, 160; Kavanagh v. Barber, 131. id. 211, 213; Ackerman v. True, supra.) For the interference with the comfortable enjoyment of their homes, for the injury to their property, the owners thereof have an appropriate remedy, if there be a nuisance ; but, as to each of them, the nuisance is private and does not become public, merely because a considerable number may be injured ; for, otherwise, it would follow that, in case of special injury to each of a considerable number, no private suit could be maintained. Hence, while the evidence of annoyance and discomfort to those dwelling in the vicinity of the alleged nuisance was relevant, the case has to be considered solely from the aspect of the public or common rights invaded.

It is necessary now to consider whether and to what extent the doctrine of compensation applies. The question appears to have been given more consideration by the courts in England than in this country. The Court of King’s Bench, in the case of King v. Russell (6 Barn. & Cress. 566) held, Lord Tenterden, Ch. J., dissenting, that the question whether the public benefit countervailed the prejudice done to individuals was properly submitted to the ' jury in the trial of an indictment for maintaining a public nuisance. The alleged nuisance in that case consisted of an obstruction in the river Tyne, caused by staiths, erected for the loading of ships with coals, plainly a case of an invasion of public and common rights. The public benefit ivas, the remote and indirect benefit supposed to result from the improved quality and cheaper price of the' coals because they could thus be loaded in better condition and at less expense. That Case was disapproved in King v. Ward (4 Ad. & Ell. 384), also a case of the obstruction of a navigable stream. But the judgment of Lord Denman, Ch. J., shows that the doctrine of compensation was not rejected, but that only advantages closely connected with the inconveniences resulting, not remote and indirect benefits alone, could be considered. In 1858 the Court of Common Pleas held, in a private suit, that the business of brick burning,, being a necessary and useful trade for the building of houses, could not constitute a private nuisance if carried on in a reasonable manner and in a proper and convenient place. (Hole v. Barlow, 4 C. B. [N. S.] 334.) That case was overruled by the Court of Exchequer Chamber in Bamford v. Turnley (31 L. J. [N. S.] Q. B. 286), but upon the ground as shown by the judgment of Baron Bramwell that supposed public benefit could not justify the infliction of loss upon an individual without compensation. That case was followed in Cavey v. Lidbetter (32 L. J. [N. S.] C. P. 104),. hut the judgment of Erle, Ch. J., shows that, while a private nuisance from a lawful trade could not be justified by convenience of place alone, the jury were entitled to consider all of the circumstances in respect of time, place, manner and degree in determining whether actionable discomfort was made out. He said : It seems to me that life, in a dense neighborhood, cannot be carried on without, mutual sacrifices of comfort, and that in all actions for discomfort the law must regard the principle of mutual adjustment, . and the notion that the degree of discomfort which might sustain an action under some circumstances must, therefore, do so under all circumstances is as untenable as the notion that the act complained of, if done in a convenient time and place, must, therefore, be justified whatever was the degree of annoyance that was occasioned thereby.” The judgments given in the House of Lords in the case of Saint Helens Smelting Co. v. Tipping (35 L. J. [N. S.] Q. B. 66) are instructive. That was a suit for a private nuisance, a direct injury to property from smelting works. The lord chancellor distinguished the case of material injury to property from that of mere personal discomfort, and in respect-of the latter said: “If aman lives in a town of necessity he should subject- himself to the consequences of those operations of trade which may be carried on in his immediate locality which are actually necessary for trade and commerce, also for the enjoyment of property and for the benefit of the inhabitants of the town and of the public at large.”

In this State in suits for alleged private nuisance caused by the carrying on of a lawful business, the question is whether the use made by the defendant of his premises is reasonable, regard being-had to time, place and circumstance. (Booth v. R., W. & O. T. R. R. Co., 140 N. Y. 267, 276 et seq. ; McCarty v. Natural Carbonic Gas Co., 189 id. 40.) In the last case cited Judge Vann, after reviewing the authorities, said : “ The extent niore than the nature of the injury, the guantum, rather than' the damnum, constitutes the nuisance. Some smoke is generally created by the natural and ordinary use of land near a village or city, and while this may sometimes be annoying to neighbors it is part of the price paid for living where there are neighbors. But when the smoke is so unusual and excessive as to materially interfere with the ordinary comfort of human existence, the trier of the facts, tahing into account all the circumstances, such as public utility, locality, immediate surroundings and the lihe, may find the use unreaso?iable.” (Italics are mine.) It seems that in a private suit the evidence excluded in this case would be considered by the court in determining whether an injunction should be^ granted or only money damages allowed. (Riedeman v. Mt. Morris Elec. L. Co., 56 App. Div. 23 ; and see Grey v. Simmons, 48 L. R. A. 717, and Commonwealth v. Miller, 139 Penn. St. 77.) The question of the right to consider the public advantage in determining whether there is a public nuisance has been decided by the Court of Appeals in a suit instituted by the Attorney-General to compel the abatement of an alleged nuisance, the maintaining of a floating elevator in the city ship canal of Buffalo. In that case judgment for the plaintiff was reversed by the General Term and the reversal was sustained by the Court of Appeals. In the course of his opinion Judge Allen, speaking for the court, said“ The employment being lawful, the question was directly presented whether the' slight obstructions resulting from the means used were not more than balanced by the public benefits and the facilities rendered to the commerce of the Canal and of the city, and it was error to refuse to consider them.” (People v. Horton, 64 N. Y. 610.)

My conclusions from the foregoing authorities are: That in a private suit the evidence excluded in this case would be relevant to the issue of whether the defendant was making a reasonable use of his property; that, even though a technical nuisance were made out, it could be considered by the court in an injunction suit on the question whether the public harm to result from shutting down the plant would not so outweigh the slight benefit to individuals as to justify the withholding of injunctive relief, and that, in a- public prosecution, the evidence is admissible to prove that the public inconveniences were^ absorbed in the greater public advantages directly resulting.

The defendant was indicted for an injury to the public, and was entitled to show the public benefit directly resulting from the act charged. It must not be overlooked that questions of injury to private property, to be redressed at the suit of' the owners thereof, are eliminated from the present discussion. We are dealing only with the personal discomforts suffered by all the public who happen to be in the vicinity of this power house, and the defendant Was entitled to prove that the inconveniences from particles of hard coal in the air to passers-by in the street, for instance, weré more than counterbalanced by the immediate advantage to them and the entire public from the power generated by the defendant to run the electric roads. The excluded evidence may have shown that the Brooklyn Bapid Transit Company could have shielded itself from public prosecution for the maintenance of this power plant by legislative authority. While, in law, the defendant, though owned by that company, has a distinct identity, the jury were entitled to know that it was only doing for the said company what the latter had the right to do. The street railroads of New York city are a public necessity. While the defendant may not have legislative permission to run this power plant in the sense in which that term is now used, it does have the right to engage in the lawful business of supplying the street railroads with power; and mere discomfort arising therefrom to individuals, which is only incidental, indeed it may be said necessary, to the existence of this great city, does not justify a public prosecution. Absolute rights cannot exist in organized society, and the denser the population, the greater the city, the more the rule of give and take, of mutual sacrifice, comes in play. Discomforts have to be borne in return for the advantages and conveniences of city life. Those living in manufacturing districts have to submit to what would not be allowed in strictly residential neighborhoods, and, in the mutual ad justment of things, find compensation in various ways.

The defendant respects the city ordinance and burns hard coal. This, when subjected to the intense heat of its furnaces, flakes off and particles escape through its smokestacks. These particles ma.y be an annoyance, but they certainly are not more unsanitary than many foreign substances found in the air everywhere in a crowded city. To many, the odors from the gas plant across the street from the defendant’s plant would be more offensive and perhaps more harmful than the particles of coal. There are few reported cases in this State of public prosecutions, for nuisance'resulting from lawful trade or business, and such cases may well be left to be redressed at the suits of individuals specially injured. The trades usually referred to in the books as indictable at common law were the tallow-chandlers’, the tanners’, and the like trades. The defendant is not contaminating the air with noisome and noxious vapors and gases, nor can it just as well conduct its business in some remote place. The place selected by it appears to be as suitable as any that could be selected; at least a jury would probably think so; it was a question of fact upon the evidence whether the business could be conducted without the emission of cinders from the smokestacks; with the excluded evidence in the case, it might be a question whether the maintenance of this power plant, or one like it in some similar place, was necessary to the running of the railroads. But if those questions should be resolved in favor of the defendant, it cannot be credited that a jury of New York city, properly instructed, would convict the defendant of .maintaining a public nuisance merely because particles of. hard coal in- place of black smoke were emitted from its smokestacks.

. The. judgment is reversed.

Woodward, Jenks and Gaynor, JJ., concurred.

Judgment and order of the County Court of Kings county reversed, and new trial ordered. • ' 
      
      See Laws of 1881, chap. 676, § 885, as amd. by Laws of 1-901, chap,. 367; Id. §386.— [Rbf.
     