
    Levi P. Morton, Resp’t, v. The Mayor, etc., of New York, App’lt. 
    
    
      (Court of Appeals,
    
    
      Filed November 28, 1893.)
    
    
      1. Municipal corporations—Nuisance.
    To entitle a municipal corporation to claim exemption from liability for a nuisance created by its acts done in performance of a public duty by legislative authority, the authority must be express or a clear and unquestionable implication from powers conferred, certain and unambiguous, and such as to show that the legislature must have intended and contemplated the doing of the very act in question.
    2. Same—Pumping stations.
    A general authority to raise and expend money for the purpose of extending and enlarging the supply of water and erecting the necessary structures and machinery for that purpose is neither an express nor implied authority to construct a pumping station which adjoins the walls of another house, or block of houses, in such a manner as to render them untenantable by the noise and vibration.
    Appeal from order of the supreme court, general term, first department, reversing judgment dismissing the complaint.
    
      Charles J. Blandy, for app’lt; B. F. Tracy, for resp’t.
    
      
      Affirming 47 St. Rep., 64.
    
   O’Brien, J.

The municipal authorities of the city of New York were empowered by chapter 386 of the Laws of 1878 to extend and enlarge the distribution of Groton water throughout the city, and for that purpose to raise and-expend a sum of money not to exceed one million five hundred thousand dollars. The authority thus conferred is to be found in the second section of the act, which reads as follows:

“The commissioner of public works of the city of New York, when thereunto authorized by three-fourths vote of all the members elected by the common council of said city, to be approved by the mayor of said city, is hereby authorized to expend for materials and labor and other services, in such manner as the said commissioner shall think for the best interest of said city, in laying pipes to extend and enlarge the distribution of Croton water throughout the city of New York, including the two new wards, and to furnish a sufficient supply thereof to the institutions in charge of the department of public charities and correction, located on Blackwell’s island, Ward’s island and Randall’s island, and in laying mains and erecting or constructing such structures and fixtures as the said commissioner of public works may deem necessary to deliver said water at higher levels and in greater quantities, an additional sum not exceeding one million five hundred thousand dollars.”

The common council and the commissioner of public works proceeded to execute the power conferred by this act, and erected, upon certain lots owned by the city a building, in which were placed pumping engines, tank and other fixtures, and laid the necessary mains and pipes to connect the points to be served with the source of supply. The object of the improvement was to supply water • at higher elevations to the portions of the city built on high ground. The pumping station was constructed sometime after the passage of the act, and in the year 1888 had been in operation some years.

About this time there was erected a row of brick dwelling houses extending from the west wall of the pumping station westerly, twelve in number, which-on the 13th of July, 1888, were all conveyed to the plaintiff. The three houses nearest to the station are known as Nos. 116, 118 and 120, the first having been built close to the west line of the lot upon which the structures of the city had been placed. The injury for which the plaintiff complained was that, by reason of the operation of the pumps and machinery in the station, the noise and vibration therefrom greatly damaged the three houses next adjoining, rendering them untenantable, or at least greatly diminishing the rental value. The vibration and noise affected the three houses in proportion to their proximity to the station. It is conceded by the learned counsel for the defendant that the plaintiff at the trial proved that the three houses were seriously affected by the action of the machinery in use in the pumping station, and that the vibrations and noise therefrom produced actual pecuniary loss to the plaintiff. There is no complaint of negligent management on the part of the municipal authorities, but the plaintiff’s contention is that he was entitled to the use and enjoyment of the property which he owned free from such annoyance or loss. On the other hand the defendant insists that it is not liáble for the results of the injury for the reason that it acted in the exercise of powers for public purposes conferred by express legislative authority. These positions assumed by the respective parties sufficiently disclose the nature of the legal question involved. The defendant’s position was sustained by the trial court, and the complaint dismissed, but the general term has reversed the judgment.

The defendant, by the exercise of the power of eminent domain, could have taken such portion of the adjoining property as would enable it to conduct its operations without damage to what remained, and the owner would then be entitled to compensation. It may be a question worthy of consideration whether upon the facts disclosed the defendant’s acts do not virtually amount to a taking without any compensation to the extent of the damage caused, but a consideration of this feature of the case is rendered unnecessary by recent decisions of this court which, when applied to the facts disclosed by the records, fully sustain the view taken by the learned general term. These cases have grafted upon the principle contended for in behalf of the defendant, that legal liability in damages cannot result from acts done by a corporation in the performance of a public duty by express legislative authority resulting in consequential injury to others, and which, as between individuals would be regarded as a nuisance, an important limitation. It is that the authority which will shelter an actual nuisance must be express or a clear and unquestionable implication from powers conferred, certain and unambiguous, and such as to-show that the legislature must have intended and contemplated the doing of the very act in question. Hill v. Mayor, etc., 139 N. Y., 495; 54 St. Rep., 797; Bohan v. Port Jervis Gas Light Co., 122 N. Y., 18; 33 St. Rep., 246; Cogswell v. N. Y., N. H. & Hartf. R. R. Co., 103 N. Y., 10; 3 St. Rep., 56.

The authorities cited show that this qualification of the general doctrine is founded in reason and justice, and that it is not by any means a new principle. It only remains to point out its application to this case. The legislature undoubtedly authorized the defendant to construct a building, and to place in it the necessary machinery to accomplish the purpose in view. But that is not the act complained of, or which produced the injury to plaintiff’s-property. The wrong consisted in placing the building and machinery so near to the adjoining property as to injuriously affect it by the noise and vibration. The city has a right to build upon its own land, but there was nothing in the statute that required it to place the structure where it did. It could perform every duty imposed by the statute by building. the pumping station at such distance from the adjoining houses as to avoid the results of which the plaintiff justly complains. If it was not possible or practicable to do that upon the land that the defendant owned, then more could have been acquired for the purpose. The legislature did not select the place for the station, but the defendant did. A general authority to raise and expend money for the purpose of extending and enlarging the supply of water, and erecting the necessary structures and machinery for that purpose, is neither an express nor implied authority to construct a pumping station which adjoins the walls of another house or block of houses in such manner as to render them untenantable by the noise and vibration. It was entirely possible to execute the statute without invading the property rights of other’s. General powers for the accomplishment of a general purpose were conferred upon the defendant, but no express or implied power or authority was conferred to do the very act complained of, nor can it be said that the legislature contemplated it. It is quite likely that all the power intended to be conferred by the statute was to enable the city to raise and expend the money for the purpose indicated. Aside from this power, the city probably could, if it had the means, build the station under existing law, and without any additional legislation. But, however that may be, it cannot be said that the legislature contemplated the selection of such a place for the station that the operation of the pumps and machinery would inevitably expose private property to destruction or injury. The language of Chief Justice Marshall in U. S. v. Fisher, 2 Cranch, 358, is applicable : “ Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness to induce a court of justice to suppose a design to effect such objects.”

: It is plain, we think, that the specific act of the defendant which resulted in the injury is not within the express words of the statute, or any necessary implication.

- The order appealed from should, therefore, be affirmed, and judgment absolute ordered for the plaintiff, with costs.

All concur.  