agreed value. We do not say that appellant was compelled to make an effort to save the vessel before he could abandon and sue, but we do say that the conditions warranting him in abandoning it must have existed, and must have been proven by him to exist: Soelberg v. Western Assur. Co., 119 Fed. 23, 55 C. C. A. 601.

Appellant complains because he says that the court below stated that it was the opinion of that court that a constructive total loss had to be proven, and that proof of a total loss would not prove a constructive total or partial loss, and in support of the contention cite Mayo v. India Mut. Ins. Co., 152 Mass. 172, 23 Am. St. Rep. 814, 25 N. E. 80, 9 L. R. A. 831, Heebner v. Eagle Ins. Co., 10 Gray, 131, 69 Am. Dec. 303, and Orient Mut. Ins. Co. v. Adams, 123 U. S. 67, 8 Sup. Ct. Rep. 68, 31 L. ed. 63. In view of the testimony in this case, which conclusively shows that, if appellant had any right to recover for a total loss, it could only have been for a constructive total loss, and the further fact that in his declaration he has declared for a constructive total loss, and all his testimony is addressed to this kind of a loss, we do not deem it necessary to pass on this action of the court; nor can we conceive how appellant could have been prejudiced in any way 273 by it in this case, even if the court was in error, which we do not say under the pleadings here. Under clause 5 of the insurance policy-what is known as the "sue and labor clause"-the insurance company merely contracted for the right to have the vessel recovered and repaired themselves, if they should be lieve that their interests demanded it at any time, without thereby defeating their right to any defense that they might have to any claim for damage interposed by the insured; but by this clause no obligation is imposed on them to do this. It is merely a provision in the insurance policy inserted for the purpose of protecting the insurer in case it should undertake to assist in the rescue of the vessel: Soelberg v. Western Assur. Co., 119 Fed. 23, 55 C. C. A. 601.

It is further argued by counsel for appellant that the acceptance of the balance of the premium of ninety dollars, after the disaster to the vessel, estops the appellees from now asserting the defense that there was no loss under the policy, and in support of his contention he cites Home Insurance Co. v. Dobbins, 81 Miss. 623, 33 South. 504. The Dobbins case has no application to the facts in this case. In the Dobbins case there was an attempt to set up a forfeiture of the policy

of insurance, after a loss had occurred, claiming that there had been a breach of the conditions of the policy in that there had been an additional insurance placed on the property without the knowledge and consent of the insurance company and in violation of the terms of the policy of insurance. The insurance company attempted to claim the forfeiture, though it accepted the premium after the loss had occurred, and did not return or offer to return any part of the premium yet unearned. In that case the court held that they could not do it: Home Insurance Co. v. Dobbins, 81 Miss. 623, 33 South. 504. But that is not this case. The insurance company is not asserting any forfeiture of the policy. but their defense is that no such loss has occurred as that sued for by appellant. The acceptance of the balance of the premium after the loss occurred in no way affected their right to controvert this: See Soelberg v. Western Assur. Co., 119 Fed. 23, 55 C. C. A. 601.

Let the case be affirmed.

Under a Policy Insuring a Ship against "total loss only, a recovery may be had for a constructive total loss: Heebner v. Eagle Ins. Co., 10 Gray, 131, 69 Am. Dec. 308. And insurance "free of partial loss" covers a constructive total loss exceeding one-half the insured value, though the property arrives in port in specie without considerable diminution in quantity: Mayo v. India Mut. Ins. Co., 152 Mass. 172, 23 Am. St. Rep. 814. A vessel is deemed to be a total loss if a prudent uninsured owner would not undertake to rebuild it: Royal Ins. Co. v. McIntyre, 90 Tex. 170, 59 Am. St. Rep. 797, and see the note thereto. As to what is a valid abandonment of a ship as for a total loss, see Louisville Underwriters v. Pence, 93 Ky. 96, 40 Am. St. Rep. 176.

KING v. VICKSBURG RAILWAY AND LIGHT COM

PANY.

[88 Miss. 456, 42 South. 201.]

EMINENT DOMAIN-Damage to Property Taken for Public Use. A constitutional provision forbidding the taking or damaging of private property for a public use except on due compensation being made to the owner, while primarily intended for formal condemnation proceedings, is equally protective of the owner of private property, when no condemnation is had and his property is taken or damaged by a public use. (p. 752.)

EMINENT DOMAIN-Public Use.-Due Compensation for private property taken or damaged by a public use is such as will make the owner whole pecuniarily for appropriating or injuring his property by any invasion of it cognizable by the senses, or by in

terference with some right in relation to property whereby its market value is lessened by the direct result of the public use. (p. 752.)

NUISANCE-Smoke, Cinders, and Soot.-People residing in cities are entitled to enjoy their homes free from the damaging results of smoke, soot and cinders, if sufficient to depreciate the value of their property and render its occupancy uncomfortable. (pp. 752, 753.)

NUISANCE-Damages-Ownership.-If damage to private prop erty, resulting from noise, smoke and cinders, was done by an electric plant before it was acquired by the owner against whom suit is brought, and there has been no continuing cause of damage maintaining a depreciation of value, such owner is not liable, but he is liable if the damage was done during a former ownership, and the cause of it is continuing and a restoration of value prevented. (p. 753.)

Hudson & Fox, for the appellant.

McWillie & Thompson and Smith, Hirsh & Landau, for the appellee.

485 CAMPBELL, S. J. The appellant is the owner of a piece of land in Vicksburg, on the north side of Pine street, on which are five dwelling-houses, one occupied by her and the others by tenants. The appellee owns and operates a plant on its land on the south side of that street for generating electrical power to furnish light for the city and its inhabitants and a street railway system, under a franchise granted by the city, with which it has a contract to furnish lights. Immediately south of the land of appellee are the tracks of the Alabama and Vicksburg Railway Company. The plant of the appellee consists of three engines and boilers and batteries, etc., and two smokestacks one hundred feet high. Its machinery is of the best kind, its employés skillful and careful, and its management above criticism. The appellant sued for depreciation in the value of her property, caused by noise, smoke, soot, cinders and vibration alleged to be caused by the plant of the appellee. She has a like suit against the Alabama and Vicksburg Railway Company. The evidence tends to show considerable depreciation in the value of the appel lant's property, manifesting itself in reduced rents and inabil ity to sell, except at a low price, because of the manner in which the property is affected by the causes complained of, arising from the plant of the appellee and the operations of the Alabama and Vicksburg Railway. The appellee denied that it damaged the property of the plaintiff, claimed that whatever depreciation of her property had occurred was before the appellee acquired its property, and that it is exempt

from liability for any damage, because it is operating under public authority conferring the right to do what it does. The court instructed the jury to find for the defendant, refusing all instructions asked by the plaintiff.

The evidence shows that the property of the plaintiff was damaged by physical invasion of deleterious agents produced by the plant of the defendant and the Alabama and Vicksburg Railway, 486 and it should have been left to the jury to say from which and to what extent. Considered as if between two private owners of the two properties, without reference to the public franchise, the right of the plaintiff to recover damages to the extent that it may be shown that they proceed from a physical invasion of her property by hurtful agents proceeding from the plant of the defendant is clear. No owner of property may set in motion agencies which physically invade the home of another without liability for the damage done. Surely no citation of authority for this proposition can be necessary. An elaborate discussion of the subject is contained in a note under the first case in volume 1 L. R. A. (new series). Public authority may confer the right to operate a public work, and thus make it lawful, but cannot confer a right to take or damage private property without compensating the owner for its value as taken or damaged-that is, diminished in its market value as property-by some physical invasion of it or by affecting some right of the owner in relation to it. Were an act passed by the legislature for the exercise of the right of eminent domain declaring that no liability should arise for noise, smoke, soot, cinders, vibration, and the like, whatever their hurtful effect on the property of others might be, it would be void, because the elements or factors of damage to property depend upon facts, and are to be ascertained by evidence in judicial proceedings.

Constitution of 1890, section 17, makes the right of the owner of private property superior to that of the public, reversing the former rule that the individual might be made to suffer loss for the public. He may still be compelled to part with his property for public use, but only on full payment for it or any right in relation to it. Before the constitution of 1890 it was held that a municipality might cut down a street to the injury of abutting owners, without any liability to them (White v. Yazoo City, 27 Miss. 357), and a river might be turned away from a plantation fronting on it without compensating the owner (Homochitto River Commrs. v. Withers, 29

Miss. 21, 64 Am. Dec. 126), and 487 damage could be done. to the property from constructing a levee without any right of the owner to be indemnified: Richardson v. Board of Levee Commrs., 68 Miss. 539, 9 South. 351. This was because of the rule that the right of the public was superior to that of the individual. The decisions of this court since the constitution of 1890 give full effect to the just rule established by its seventeenth section, by maintaining the right of the owner to be fully compensated for any loss of the value sustained from any physical injury to his property or disturbance of any right in relation to it, whereby its market value is diminished: Alabama etc. Ry. Co. v. Bloom, 71 Miss. 247, 15 South. 72; City of Vicksburg v. Herman, 72 Miss. 211, 16 South. 434; Richardson v. Board of Levee Commrs., 77 Miss. 518, 26 South. 963; Rainey v. Hinds County, 78 Miss. 308, 28 South. 875; City of Laurel v. Rowell, 84 Miss. 435, 36 South. 543. Many decisions of the courts of other states, with constitutions like ours, are cited and discussed in Lewis on Eminent Domain, sections 230-236.

It is worthy of observation that the instruction prescribed to be given the jury in eminent domain proceedings is that "the defendant is entitled to due compensation, not only for the value of the property to be actually taken, . . . . but also for damages, if any, which may result to him as a consequence of the taking': Code 1892, sec. 1690; Code 1906, sec, 1865. It is true that the language of section 17 of the constitution was intended for formal condemnation proceedings, wherein it provides for compensation to be first made in a manner to be prescribed by law; but it is equally protective of the owner of private property, when no condemnation is had and his property is taken or damaged by public use. Due compensation is what ought to be made-that is, what will make the owner whole pecuniarily for appropriating or injuring his property by any invasion of it cognizable by the senses, or by interference with some right in relation to property whereby its market value is lessened as the direct result of the public

use.

488 We recognize as true that when people live in cities they, in the language of counsel, "surrender some of those privileges so dear to them when the air is rendered fragrant and healthful by the exhalations of the pine, musical with the gurgling currents of running water, and cooled by the unobstructed breezes from summer seas," but think they are entitled to enjoy their homes free from damaging results from