| R.I. | Sep 5, 1861
The question raised by this demurrer is, whether the fourth and fifth counts of the declaration state a cause of action. They allege, in substance, that the defendant, by the erection of a large wooden building, constructed in violation of a statute of the State regulating the erection of buildings within what are called the fire limits of the City of Providence, has so increased the risk from fire to the plaintiff's dwelling house, stores, and hotel, next adjoining, that he has been unable to rent the same, and has been obliged to pay greatly enhanced rates, to insure them. The plaintiff, as an adjoining proprietor, is certainly within the protection of the act, which regulates with minuteness the mode of building in reference to the safety of the houses of such proprietors from fire, and has stated, in these counts, a special pecuniary loss consequent upon the defendant's illegal act, for which the public prosecution of the defendant can afford no redress. The special damage alleged is not, as claimed by the defendant, remote or contingent, but present, actual, and directly consequent upon the defendant's violation of law. As stated, it is peculiar to the plaintiff as an adjoining proprietor, and in excess of the injury sustained by the public, whose interests are also intended to be guarded by the act from the effects of devastating fires. In these respects, the cause of action set forth in these counts not only falls within the general rule, relating to actions of the case as derived from the equity of the statute of Westm.2d, but within that more special rule, so long ago laid down by Lord Holt, that "in every case where a statute enacts or prohibits a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage, or for the recompense of the wrong done to him contrary to the said law." 1 Com. Dig., Action upon Statute, F; Ib., Action upon the Case, A;Couch v. Steel, 3 Ellis and Blackburn, (77 Eng. C.L.R.) 411, per Lord Campbell, C.J.
As we construe this statute, it imposes upon one erecting a building within the fire limits of Providence the duty, in respect to adjoining proprietors and the public, of building it in the manner, of the material, and of the size prescribed by the act. The prohibition is imperative upon him, if he builds at all, to build as the act prescribes, and in no other manner; and quite *214 as effectually imposes upon him the legal duty of so building, as if the statute had expressed the duty in an affirmative form. The eighth and ninth sections, which fix the pecuniary penalties for disobedience of the former sections, so far from licensing the violation of the statute upon the terms of paying the penalties, were designed simply to punish the violator according to the degree of his offence and his persistency in it, and thus to compel a compliance with the law as enacted. They are divided, when recovered, between the city and the State; and not a penny of them given in recompense to a party specially damaged. They are recoverable for the public injury, whether any one be specially damaged or not. The statute does not, as in some of the cases cited, in creating the offence, notice also the private injury, and through the penalties, give the private recompense. Had it done so, there would have been some reason for confining the party injured to the statute compensation, however inadequate it might seem to be. As it is, the party specially injured has no redress unless by the equity of the old statute of Westminster 2d, — designed to afford a remedy for every wrong not redressed by any of the formed actions of the common law, if an action of the case can afford it. We have no doubt that when a statute makes the doing or omitting any act illegal, and subjects the offending parties to penalties for the public wrong only, a party specially injured by the illegal act or omission has the right of suing therefor at the common law. Couch v. Steel, sup.; SteamNavigation Co. v. Morrison, 13 Common Bench, (4 J. Scott,) (76 Eng. C.L.R.) 581, 594, per Williams, J.; Caswell v. Worth, 5 Ellis and Blackburn, (85 Eng. C.L.R.) 849, 855, 856, per Coleridge, J.
The fourth and fifth counts of the declaration are maintained, and the pleas thereto overruled. *215