41 Cal. 449 | Cal. | 1871
I think the demurrer to the complaint ought to have been sustained, on the ground that it shows no special damage to the plaintiffs. The road is alleged to be a public highway, and the action is to prevent an obstruction. Ho doubt a private individual may sue to prevent or abate a public nuisance; but he must always show some special damage to him in addition to that received by the public. The rule is plain, and has always, so far as I know, been adhered to; the questions most usually raised are as to the character of injury which will.be considered a special injury to private individuals. In this case the only allegations which can be claimed to show special damage are, that plaintiffs each own tracts of land adjoining the alleged road, and have no other means of access to their lands except over and along said
In the case of The Proprietors of Quincy Canal v. Newcomb, 7 Met. 276, the defendant, being sued for toll for the use of plaintiffs’ canal, set up that the canal had not been built according to the charter, and defendant was greatly damaged thereby, and could not have the same advantageous use of the canal which he might have had if it had been constructed as required by the Act of incorporation. Chief Justice Shaw says, in deciding the case, that even admitting the right to set up damages in mitigation, evidence to support this defense was properly refused; for, if he suffered damage from the failure to construct the canal as required, or from its filling up, it was damage in common with all the members of the community, and therefore redress must be sought in a public prosecution; that “ where one suffers in common with all the public, although from his proximity to the obstructed way, or otherwise from his more frequent occasion to use it, he may suffer in a greater degree than ' others, still he cannot have an action, because it would cause such a multiplicity of suits as to be itself an intolerable evil.” To the same -effect is the ease of Sully v. Bishop, 19 Conn. 128. O’Brien v. Norwich and Worcester R. R., 17 Conn. 372, was a case in which a private individual attempted to enjoin the defendant from constructing its railroad across an arm of the sea, which is alleged to have been navigable and to have been used by the plaintiff and others, at their pleasure, for the purpose of passing up and down the cove connected by it with the River Thames, a navigable river; that by means of the road so constructed
These authorities are directly in point, and none have been cited to a contrary effect, although there are some where a very slight damage peculiar to "the plaintiff has been held sufficient to enable him to maintain the action.
Judgment reversed and cause remanded, with directions to sustain the demurrer.