waukee & C. R. Co. 3 Wall. 196-206, 18 L. ed. 43-46. We perceive no difference between a sale made at public outcry, and one made in the manner prescribed by statute. In each case it is an offer for sale to the highest bidder, and no sale is made until the bid is accepted. Here, notwithstanding the relator's bid was the highest, and its acceptance might have been advisable, the representative of the government charged with the conduct of the sale decided not to accept it, and therefore no sale was actually made. In view of this conclusion, other questions that have been argued need not be considered. There was no error in dismissing the petition, and the judgment will be affirmed, with costs. Affirmed.

A writ of error to the Supreme Court of the United States was allowed on application of the appellant.

RICHARDS v. WASHINGTON TERMINAL COM

PANY.*

RAILROADS: DAMAGES; CONSEQUENTIAL INJURIES; CONSTITUTIONAL LAW.

A railroad company occupying in a lawful manner a right of way lawfully acquired by it, and operating its trains thereon in a manner not negligent, is not liable to a property owner whose property is separated from the right of way by other property, for injuries to his property caused by the smoke, dust, dirt, cinders, and gases of its passing trains, and the vibrations caused by their movement on the tracks along the right of way. Such injuries are consequential,

*Railroads; Eminent Domain; Consequential Injuries.—As to the right, under constitutional provision against "damaging" private property for public use without compensation, to compensation for consequential damages to property, no part of which is taken, from smoke, noise, dust, etc., incident to ordinary operation of railroad, see note to Tidewater R. Co. v. Shartzer, 17 L.R.A. (N.S.) 1053.

Vol. XXXVII.-19.

and do not constitute the taking of property by the railroad company, within the meaning of the 5th Amendment of the Federal Constitution. (Distinguishing Dana v. Rock Creek R. Co. 7 App. D. C. 482, and Academy of the Sacred Heart v. Philadelphia, B. & W. R. Co. 36 App. D. C. 372.)

No. 2248. Submitted May 2, 1911. Decided May 24, 1911.

HEARING on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia, upon a verdict directed by the court, in an action of trespass on the case. Affirmed.

The COURT in the opinion stated the facts as follows:

This is an appeal from a judgment of the supreme court of the District upon a directed verdict for the defendant, Washington Terminal Company, in an action by the plaintiff, A. Webster Richards, of trespass on the case for the recovery of damages incident to the moving and passing of locomotive engines and trains of cars over the right of way of the defendant, said right of way being separated from plaintiff's premises by other property.

Plaintiff, since March, 1901, has been the owner of lot 34 in square 693, through which square defendant's right of way extends. Upon this lot is a three-story brick dwelling house of ten rooms. These premises are about 114 feet distant from the south portal of defendant's tunnel, which enters and opens within said square, and about 90 feet distant from the tracks leading to and from that end of the tunnel. Between the defendant's right of way, occupied by these tracks, and the plaintiff's property, are two other pieces of property; in other words, plaintiff's premises at no point abut said right of way.

The evidence of the plaintiff tended to show that by reason of the smoke, dust, dirt, cinders, and gases emitted from defendant's trains while passing over said tracks and in and out of said tunnel, and by reason of the vibrations caused by the movement of said trains over said tracks and through said tunnel, his property, which was formerly worth about $5,500, is now worth only about $3,000; that the rental value of said

property has depreciated from the same cause $10 per month; that the depreciation in his personal property in said house has been about $600.

The tunnel and tracks leading to and from the south portal thereof, it is conceded, were located, constructed, and maintained under the authority of and in accordance with the acts of Congress of February 12, 1901, and February 28, 1903. The record also contains a stipulation "that no claim is made by the plaintiff that said tunnel and said tracks in square 693, and all trains operated therein and thereon were constructed, operated, or maintained in a negligent manner; and that said tunnel and said tracks were built upon property acquired by purchase or in condemnation proceedings, and that they were constructed under authority of the acts of Congress and permits issued by the commissioners of the District of Columbia as aforesaid."

Upon the close of the plaintiff's case the defendant moved for a verdict, which motion being granted and judgment entered for the defendant, the case was brought here.

Mr. Gibbs L. Baker, Mr. Hugh H. Obear, Mr. Edward F. Colladay, Mr. Paul Sleman, and Mr. Harry F. Lerch for the appellant.

Mr. George E. Hamilton, Mr. Michael J. Colbert, Mr. John J. Hamilton, and Mr. John W. Yerkes for the appellee.

Mr. Justice ROBB delivered the opinion of the Court:

It is apparent from what has been said that the issue in this case is sharply defined. The defendant, a public-service corporation, is occupying in a lawful manner a right of way lawfully acquired. The location of this right of way was fixed by law, and Congress has failed to enact any legislation under which plaintiff is entitled to damages for the injury he has sustained. The question, therefore, is whether there has been a

taking of property within the meaning of the 5th Amendment of the Constitution.

The physical proportions of plaintiff's premises have suffered no diminution on account of the acts forming the basis of this suit; in other words, the injury sustained is consequential, and not direct. The Supreme Court of the United States has had this question before it in numerous cases.

In Pumpelly v. Green Bay & M. Canal Co. 13 Wall. 166, 20 L. ed. 557, the question before the court was whether the permanent flooding of land by the erection of a dam authorized by law constituted a taking of private property for public use without just compensation, within the meaning of the Constitution of the State of Wisconsin. The court held that it did. In that case, it will be seen, there was an actual invasion of property, and the result of such invasion was, as the court found, a practical taking thereof.

Northern Transp. Co. v. Chicago, 99 U. S. 635, 25 L. ed. 336, was an action against the city of Chicago to recover damages sustained by the company by reason of the construction by the city of a tunnel under the Chicago river. The company owned a lot abutting on this river, upon which it had erected a dock and warehouse. In building the tunnel, the city erected a coffer dam in front of plaintiff's dock, which, for the time being, deprived plaintiff of the use of its dock. The court said: "A legislature may, and often does, authorize and even direct acts to be done which are harmful to individuals, and which, without the authority, would be nuisances; but in such a case, if the statute be such as the legislature has power to pass, the acts are lawful, and are not nuisances, unless the power has been exceeded. In such grants of power a right to compensation for consequential injuries caused by the authorized erections may be given to those who suffer, but then the right is a creature of the statute. It has no existence without it." It was held that there had been no taking of plaintiff's property within the meaning of the Constitution of the State.

In Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U. S. 317, 27 L. ed. 739, 2 Sup. Ct. Rep. 719, the railroad com

pany was authorized by law to enter the city of Washington with its railroad by one of two routes, and to construct all works which might "be necessary and expedient" in the proper completion and maintenance of its road. It selected the route along Virginia avenue in front of the church of the plaintiff, and erected upon a parcel of ground immediately adjoining an engine house and machine shop, where a large number of locomotive engines were housed and fired, and to and from which such engines were propelled, and in which they were repaired and otherwise used. This engine house contained sixteen smoke stacks, lower in height than the windows of the main room of the church. The services in the church were habitually interrupted and disturbed by the noises of the workshop and the smoke, cinders, and dust issuing therefrom. The entrance to the church was frequently obstructed by locomotives standing on the branch track which extended to the workshop and crossed the street in front of the church. The court found that this engine house and repair shop, as they were used, constituted a nuisance, for the maintenance of which the company was liable in damages to the plaintiff. Answering the claim of immunity advanced by the company, based upon the act of Congress, the court said: "In the first place, the authority of the company to construct such works as it might deem necessary and expedient for the completion and maintenance of its road did not authorize it to place them wherever it might think proper in the city, without reference to the property and rights of others." The court observed that undoubtedly Congress might authorize a railway over the public highways of the District, which, if used with reasonable care, and produced "only that incidental inconvenience which unavoidably follows the additional occupation of the streets," might not be complained against by anyone; that the consequential annoyance which would necessarily follow from the running of cars with reasonable care over such a road would be damnum absque injuria. The court found, however, that the case under consideration differed from the supposed case, and sustained the plaintiff's right to recover. In that case, it will be observed, the railroad