1918

Killam v. Norfolk & W. Ry. Co.

Supreme Court of Virginia

122 Va. 541, 96 S.E. 506

Railway constructed track near landowner for the purpose of unloading coal cars, which generated damaging vibrations, noise, smoke, ashes and coal dust. Landowners brought common law action for nuisance, and trial court sustained special plea of immunity by Railway. On appeal, Railway argued that it was immune from suit because Railway was acting in its public capacity and exercising its right of eminent domain. Supreme Court reversed and remanded. When a public service corporation acts in a private capacity, that corporation will not have immunity from liability for damages resulting from activity that would be a private nuisance at common law. The operation of the terminal yard and delivery of coal to transport ships was in Railway’s private capacity in using the terminal yard, and suit was not barred by a plea of immunity.

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