Thе appellant brought this action to enjoin the appellee from making use of a portion of the public wharf in the city of Jeffersonville. A demurrer was sustainеd to his complaint, and this appeal is from the final judgment rendered against him on demurrer.
The complaint shows that the plaintiff is a citizen of Jeffersonville, and the оwner of a two-story frame dwelling house occupied as a family residence, and worth $10,000; that directly in front of his house is a street sixty feet in width, and between that and the Ohio river is the public wharf, or levee of the city; that the defendant is a corporation having no residence in the city, or especial interest in or ownershiр of said wharf, and no corporate power to condemn or take either private or public property for use in its business; that on the 8th day of April, 1890, the dеfendant, without the consent of the plaintiff, wrongfully entered upon the strip of land used for wharf purposes directly in front of the plaintiff's residence, and has begun the сonstruction of a logway, or elevated platform of heavy timbers, with
The complaint also charges that in addition to the personal discomfort, annoyаnce and depreciation in value of his property, the plaintiff, as a citizen and resident taxpayer of Jeffersonville, will, with his family, be permanently deprivеd of the right to use and drive over said part of the wharf occupied by the barrier and obstruction to be erected by the defendant, which right he now has, in common with thе general public, and which he has never surrendered to anyone,
The comрlaint does not show that the appellant will suffer injury as a taxpayer of the city, on account of the proposed construction of the logway complained of. It is not made to appear that his taxation will be increased either directly or indirectly.
Neither does it show a right of action in his favor on aсcount of the deprivation of the right which he, in common with the general public, has to use and drive over that part of the wharf occupied by the obstruction. McCowan v. Whitesides,
Whether, if the common council had granted the appellee the right to obstruct the wharf, an action could have been maintained by a citizen suing in behalf of himsеlf and others, although discussed in the briefs of counsel, is not before us for decision.
The appellant insists that the common councils of cities have not the samе exclusive jurisdiction of public wharves that they have of the streets and alleys, and therefore no right to grant the public wharves for the permanent use of privаte citizens.
The distinction, if it exists, is not material in this case. While the statute (section 3161, R. S. 1881) purports to grant the common council exclusive power over the streеts, highways, alleys and bridges within such city, it must be understood that this power can only be exercised for the use and benefit.of the public. Streets, alleys and highways are held in trust for the public for public purposes, and no other. A common council has no power or authority to authorize the permanent possession of a publiс highway, street or alley for
In Pettis v. Johnson,
The erection of a structure of the character and permanency described in the complaint, for purely private purposes, upon or across the public streets, alleys, highways, or wharves of a city is unlawful, and such as the common council сan not authorize and should not tolerate.
Where a street, or public way, is used for public purposes, such as for street railways or other improved methods of travel, the common councils have authority to permit permanent obstructions to be placed in the streets, but they have no such power when the рurpose is strictly private and the public in no manner served.
This distinction is illustrated by the case of Mikesell v. Durkee,
We have stated that in so far as the appellant has suffered,- or is about to suffer, injuries in common with the general public, he has no right of action. It is the province of the public authorities to procure redress for public wrongs; but when an individual suffers a special injury the law affords him redress upon his own application.
In the late case of First Nat’l Bank of Vernon v. Sarlls,
The merе fact that the injury is greater in degree to a particular individual than to others will not entitle him to relief. McCowan v. Whitesides, supra; Dwenger v. Chicago, etc., R. W. Co., supra; Terre Haute, etc., R. W. Co. v. Bissell, supra; Sohn v. Cambern,
It is not nеcessary to a right of action by the owner of a dwelling-house, that the property itself will be injured, but if its comfortable enjoyment will be essentially interfered with by dust, smoke and offensive odors, relief by injunction will be awarded. Owen v. Phillips,
We are satisfied that the complaint charges an injury to the plaintiff, distinct from that of the general public. The injury tо the use and enjoyment of his dwelling-house, and its consequent depreciation in value, which is charged in the complaint, and admitted by the demurrer, is a personal and not a public injury.
The fact that the obstruction and use of the public wharf, and the use of the engine and machinery, is for the use of a private company and for their convenience and profit, and not for the general public, is of controlling importance in this class of cases. Kincaid v. Indianapolis Natural Gas Co.,
The judgment is reversed, with instructions to overrule the demurrer to the complaint.