# Baltimore v. Fifth Baptist Church

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United States Supreme Court
108 U.S. 317
Baltimore v. Fifth Baptist Church
The Fifth Baptist Church, the plaintiff in the court below, is a religious corporation, created under the general incorporation act of congress in force in the District of Columbia. It owns a building in the city of Washington, situated on D street, between Four-and-a-half and Sixth streets, which was erected and has been used by it as a church for many years. The defendant in the court below, the Baltimore & Potomac Railroad Company, is a corporation created under the laws of Maryland, and is authorized by act of congress to lay its track within the limits of the city, and construct other works necessary and expedient to the proper completion and maintenance of its road.
The plaintiff alleges that the defendant, in 1874, erected an enginehouse and machine-shop on a parcel of land immediately adjoining its church edifice, and has since 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. It therefore brought the present suit in the supreme court of the district for the damages it had sustained. The defendant pleaded the general issue.
On the trial, evidence was given to show—
That the Fifth Baptist Church has owned and used the premises described as a place of worship since 1857; that the present church building was begun in 1867, and since 1868 or 1869 has been continuously occupied by the church as its house of worship; that in 1872 the defendant erected upon a parcel of ground immediately adjoining the premises on the west, and from April, 1874, till the commencement of this suit, maintained an engine-house and machine-shop, where a large number of locomotives and steam-engines were housed and their fires made, and to and from which the engines were propelled, and in which they were coaled, watered, repaired, and otherwise used; that when the ground was first broken for the erection of these works the plaintiff advised the company that if put there they would prove to be a nuisance and ruinous to the plaintiff's interests, and protested against their erection; that the company, however, paid no heed to this protest, but proceeded to erect the works upon the building line of its own premises within five and a half feet of the church edifice, and constructed upon the enginehouse 16 smoke-stacks, lower in height than the windows of the main room of the church; that the nearest of the smoke-stacks was less than 60 feet from the windows, and the others were in a semi-circular curve. at gradually increasing distances; that during this period-from April, 1874, to commencement of the present suit-the plaintiff was accustomed to have on every Sabbath day Sunday-school exercises in the morning, preaching in the forenoon, and preaching in the evening; and that religious services were also held in it on Wednesday evening of every week, and on the first Tuesday and Friday evenings of every month, and at intervals protracted religious meetings were held in it every night in the week except Saturday night; that during this period these services were habitually interrupted and disturbed by the hammering noises made in the workshops of the company, the rumbling of its engines passing in and out of them, and the blowing off of steam; that these noises were at times so great as to prevent members of the congregation sitting in parts of the church furthest from the shops from hearing what was said; that the act of blowing off steam occupied from five to fifteen minutes, and frequently compelled the pastor of the church to suspend his remarks; that this was of habitual occurrence, during the day and at night, and on Sundays as well as other days; and that in the summer-time, when the windows of the church were opened for air, smoke, cinders, and dust were blown from the smoke-stacks through the windows of the church, settling upon the pews and furniture, and soiling the clothes of the occupants, accompanied by an offensive odor, which greatly annoyed the congregation.
Evidence was also given to show—
That the railroad company, which was authorized to lay its track only along Virginia avenue in the city, had constructed a side track from the avenue to its workshops, crossing a part of D street and its sidewalk at a distance of about 100 feet from the door of the church; that the locomotives were allowed to stand at the entrance of its premises with their cow-catchers protruding several feet beyond the inclosure, and sometimes to stand across the sidewalk along which two-thirds of the congregation are obliged to pass in going to and from the church; that the access to the church was thereby obstructed and rendered dangerous, and on several occasions members had barely escaped being run over by the sudden starting of the locomotives without note or warning; that the congregation had been thereby diminished, and the attendance upon the Sunday-school decreased by about one-fourth; that the Sunday-school was a source of revenue to the plaintiff, having contributed to the construction and improvement of the church building, and this revenue was proportioned to the attendance thereon; that the property of the plaintiff was nearly ruined for church purposes by the proximity of the works of the defendant, and the noise, smoke, cinders, and dust which they created; that the rental value was ordinarily from $1,200 to $1,600 per annum, but that with the defendant's works adjoining it could hardly be rented at all; and that those works had depreciated the value of the property fifty per cent.
To meet the facts thus established, and as a defense to the action, the railroad company gave evidence to show—That it ran about 60 trains a day over its road in the city of Washington during week-days, and about 10 trains on Sundays; that its locomotives were the best known in the business; that it employed about 200 men, who were all skillful in their particular branches of the work, and well behaved; that in the engine and repair shop no more noise was made than was necessary; that every precaution was taken on Sundays to preserve quiet in the neighborhood of the church; that the main shop of the company was in the city of Baltimore, and the shop and engine-house in Washington were used only for making casual and temporary repairs in order to keep the machinery and engines in operation; that the smoke-stacks were higher than required by the building regulations in force in Washington; that the engine-house and workshops were skillfully and carefully constructed with suitable appointments and appliances; that the bells of the locomotives were not rung, not the whistle sounded, except when an accident was liable to occur; and that when the engines were brought into the house the steam ordinarily was not blown off, but allowed to go down.
The main reliance, however, of the railroad company to defeat the action was the authority conferred upon it by the act of congress of February 5, 1867, to exercise the same powers, rights, and privileges in the construction of a road in the District of Columbia, the line of which was afterwards designated, which it could exercise under its charter in the construction of a road in Maryland, with some exceptions, not material here. By its charter it was empowered to make and construct all works whatever, which might 'be necessary and expedient,' in order to the proper completion and maintenance of the road.
The act of congress provided that the road which the company was authorized to construct should enter the city at such a place and pass along such public street or alley to such terminus as might be allowed by congress, upon the presentation of a survey and map of its proposed location. Subsequently congress allowed the company to enter the city with its railroad by one of two routes, as it might select. It selected the one by which the road is brought along Virginia avenue, in front of the church of the plaintiff, to the intersection of South C and West Ninth streets.
The testimony of the parties being closed, the plaintiff prayed three instructions to the jury, which were given by the court, with additions to each. They are as follows:
FIRST INSTRUCTION PRAYED.
'If the jury find from the evidence that the engine-house of the defendant is used for receiving its engines when they come into the city after a trip; that after coming into said engine-house such engines more or less frequently blow off their steam, and that such blowing off of steam makes a loud and disagreeable noise, and that such engines are put in the stalls in said house, and omit the smoke from their fires through the chimneys of said house, and that the said engine-house is used for the purpose of a shop in which to make a certain class of repairs upon the engines and cars of the defendant, and that a loud noise of hammering is created in making such repairs, and that said engine-house is also used to receive coal for coaling the engines of defendant before going out, and that they are all coaled therein, and also get up their fire and steam therein, and further find that said house is located so near the church of the plaintiff that the noises from said engine-house can be distinctly heard inside of the said church, and also that the chimneys of said engine-house are so constructed that the tops thereof are not as high as the tops of the windows of said church, and shall further find that the smoke from said chimneys is thrown through said windows into said church in such quantities and so generally as to be a common annoyance and inconvenience to the congregation worshipping therein, and that said noises in said yard of blowing off steam are of daily and nightly occurrence, and are so distinctly heard in said church on Sundays, as well as the days of the week, as to annoy, harass, and inconvenience the congregation when engaged in divine worship therein, and that they disturb and greatly inconvenience the congregation in the enjoyment of said building as a church, then the plaintiff is entitled to recover, provided the jury find that said church was located upon the spot where it now is before the defendant established its engine-house in its present position, and provided the jury further find that the annoyance and inconvenience to said congregation from the smoke and noises above mentioned occurred within three years before the date at which this suit was brought, and provided further that said noises and smoke depreciated the value of the property of the plaintiff within the period from April 1, 1874, to March 22, 1877.'
The court granted this prayer and gave the instruction, adding to it a charge, as follwos:
'If you find all these facts, then this shop is a nuisance, and a special annoyance to the congregation that worship in this church. Every man has a right to the comfortable enjoyment of his own house, in which enjoyment a neighbor cannot molest him; and no grant conferred by proper authority upon any corporation to construct a railroad along the public streets, or to build shops, can be construed as authorizing that company to construct a nuisance. If the work is of such a necessary kind that the company must have it, if the shop is of that character, and yet is a nuisance in the neighborhood, they must find some other place to put it. No legislature has a right to establish a private nuisance.'
SECOND INSTRUCTION PRAYED.
'The actual amount of pecuniary loss to the plaintiff is not necessarily the rule of damages in actions like the present. In estimating the amount of compensation to the plaintiff for the injury, if any, found to have been sustained by it, the jury may determine the extent of the injury and the equivalent damages, in view of all the circumstances of said injury to said plaintiff, of depreciation in the value of its property during the period embraced in this suit, and of interference with the uses to which said property was devoted by said plaintiff during said period, and of all other particulars, if any, wherein the plaintiff is shown to have been injured during said period, and for which, under the instruction of the court, said plaintiff is entitled to recover.'
This prayer was granted and the instruction given, accompanied with the following charge to the jury:
'That prayer I think is substantially right. The suit is brought by a congregation duly incorporated, and they have brought an action to recover damages for their inconvenience and discomfort in consequence of the acts of the defendant. It is the personal discomfort more than anything else which is to be considered in regard to the assessment of damages. Now, I can very easily imagine, and it may often happen, that the construction of an improvement such as this might increase the value of property in the vicinity, and I am not sure at all that the erection of this workshop in that neighborhood may not really have increased the intrinsic value of the property belonging to this congregation. The evidence in the case does not, as it seems to me, show that this property has been depreciated by the construction of that workshop. We can imagine, and it is not a far-fetched imagination either, that the effect of such a workshop in that neighborhood might be to collect a population around it, and thus increase the population in that neighborhood, and really enhance the value of property; and yet the congregation would be entitled to recover damages (although their property might have increased in value) because of the inconvenience and discomfort they have suffered from the use of the shop. The congregation has the same right to the comfortable enjoyment of its house for church purposes that a private gentleman has to the comfortable enjoyment of his own house, and it is the discomfort which is the primary consideration in allowing damages.'
THIRD INSTRUCTION PRAYED.
'If the jury find from the evidence that, among other purposes, the plaintiff's church was used by the said plaintiff as a school-house for the instruction of children on the Sabbath day, and that a revenue was derived from such school, depending for the amount thereof upon the number of children attending said school, and shall also find that the defendant was in the habit of allowing its engines, with steam on, and ready to move out over D street, to lie adjacent to the sidewalk of said D street, adjacent to its workshop and enginehouse, and that in consequence of said engine being so allowed to occupy such position the number of pupils attending said school was diminished, and that from the said cause the number of the pupils of the said school was lessened within the period from March 22, 1874, to March 22, 1877, then the jury will consider the extent of such special damage to the plaintiff, should they find such special damage an element in making up their verdict in this case.'
This prayer was granted and the instruction given, accompanied with the following charge:
'I grant that prayer because there is some evidence that this congregation used that church partly for a Sunday-school where children are instructed, and that those children were in the habit of contributing, and have contributed, sums of money to the support of the church. A party is entitled to be compensated, not only for actual damages sustained from the acts of the defendant, but, in a case like this, is entitled to his damages for a continuous and threatened danger. A man is entitled to recover damages from the owner of an adjoining property ready to tumble the danger may not have been actually That is a threatened danger, and although the danger may not have been abtually sustained, yet people are not to be kept in alarm constantly by a threat of danger. It may fall upon him at any time, and a court of chancery would direct it to be removed, and on an indictment for a nuisance of that kind it would be removed. But in private actions like this it may be taken into consideration by the jury whether those engines, standing inside the house and passing out and in so frequently as they do, and in that place, produce a reasonable and fair apprehension of danger to persons passing to that church, especially to children passing to Sunday-school. You can take that element into your consideration.'
To each of these instructions the defendant excepted. It also requested the court to give several other instructions, the purport of which was—
That if the railroad company constructed its smoke-stacks on the repair-shop in the usual and ordinary manner, and built them as high as required by the building regulations in force in Washington, the plaintiff could not recover for any damage caused by smoke from such smoke-stacks; that the company possessed the right to select the location in question, and to construct, maintain, and use upon it such engine-house and other works as were necessary and expedient for the construction, maintenance, and repair of its road and engines, and to occupy the premises for that purpose; and that if the jury found that the inconveniences complained of were no more nor greater than the natural or probable result of maintaining such engine-house and repair-shop, or found that, in the occupation and use of the property and management of its business, the company exercised such reasonable care as a person of ordinary prudence and caution would exercise under the circumstances, it was not liable for any damages; and that if the company did not use reasonable care in the construction of the smoke-stacks on the engine-house or repair-shop, the plaintiff was only entitled to recover interest for three years on the difference between the value of the property as it would have been if the defendant's smoke-stacks had been carefully constructed, and the actual value as reduced by the smoke from them; that the defendant was entitled to construct and use the side track across D street; and that the plaintiff could not recover, being a corporation, for any inconvenience which members of the congregation assembled in its church might suffer from the noise and offensive odors occasioned by the defendant's engines and shops.
The court refused to give these instructions, and the jury found for the plaintiff $4,500 damages, and the judgment entered thereon was affirmed at the general term of the supreme court of the district. To review that judgment the defendant brought the case here on a writ of error.
Enoch Totten, for plaintiff in error.
[Argument of Counsel from pages 326-328 intentionally omitted]
R. T. Merrick and I. J. Darlington, for defendant in error.
FIELD, J.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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