Bigelow v. Hartford Bridge Co.

14 Conn. 565 | Conn. | 1842

Storrs, J.

This bill cannot be sustained merely on the . , ground that the difficulty and danger of travelling on said causeway will be increased, by the greater depth and more rapid flow of the water which will be occasioned by the contemplated acts of the Hartford Bridge Company, and that therefore said acts will constitute a public nuisance. It is very clear, that a bill in equity will not be entertained for an injunction against a public nuisance, unless it shows that the plaintiff will sustain a special or peculiar damage from it, an injury distinct from that done to the public at large. In Spencer v. The London and Birmingham Railway Company, 8 Simons 189. (11 Cond. Ling. Ch. R. 390.) the plaintiff averred, not only that, by the excavation of the defendants in Granby street, the said street was impassable, and he was deprived of access from his hackney coach and livery establishment at a place called Granby News, through that street to the Hampstead road, but also stated such facts as shewed, that he thereby suffered a particular injury, and one different from that done to individuals in general. The Vice-Chancellor, on that ground, decided, that the plaintiff had a special right, quite distinct from that of the public at large, and overruled the demurrer to the bill, which proceeded on the ground that the injury was a public nuisance, and therefore, that the relief prayed for ought to be sought by information at the suit of the attorney-general, and not by bill. In Sampson v. Smith, 8 Simons 272. (11 Cond. Eng. Ch. R. 432.) the plaintiff alleged, that the body of the smoke, which issued from the chimney of the defendant’s steam engine, and the blacks and soot mingled therewith, descended in such dense bodies into the street, that the plaintiff’s house and shop situated thereon, were filled therewith, and his goods and furniture very much injured, and the health and comfort of himself and family very much impaired thereby; and that it was a grievous nuisance to the plaintiff, and also to the other inhabitants of that street and neighbourhood. The bill was sustained on the ground of the special injury suffered by the plaintiff. Indeed, it is upon the ground of the particular injury to the plaintiff, distinct from that which he suffers in common with the rest of the public, that all the applications for injunctions against what is a public nuisance are sustained. Crowder v. Tinker 519 Vesey 617. And there is no good reason why, apart from such special injury, relief should be granted in this mode, at , . " J . , . ,. . , , „ „ . . the instance of a particular individual. Courts ot equity, in this respect, proceed on the principle which prevails in courts of law, that an action will not lie in respect of a public nuisance, unless the plaintiff has sustained a particular damage from it, and one not common to the public generally. Co. Litt. 56 a. Williams’ case, 5 Co. 73. Sir Thomas Earle’s case, Carth. 173. 176. Chichester v. Lethbridge, Willes 71. Robins v. Robins, 1 Salk. 15. Iveson v. Moore, 1 Ld. Raym. 486. 491. Rose & al. v. Miles, 4 Man. & Sel. 101. Wilkes v. Hungerford Market Company, 2 Bing. N. Ca. 281. Greasly v. Codling & al. 2 Bing. 263.

To preserve and enforce the rights of persons, as individuals, and not as members of the community at large, is the very object of all suits, both at ¡aw and in equity. The remedies which the law provides in cases where the rights of the public are affected, and especially in cases of public nuisance, are ample and appropriate ; and to them recourse should be had, when such rights are violated. The courts of equity, in England, will indeed entertain informations, not by individuals, but at the suit of the attorney-gene ral, or the proper crown officer, for the purpose of abating public nuisances, and what are termed purprestures. That mode of proceeding has been, however, hitherto unknown here ; and whether it would be tolerated in any case, it is unnecessary to consider.

The averment, that the acts contemplated by the bridge company will be injurious to the property of others besides the plaintiff, may be disregarded ; since the bill cannot, consistently with any recognized principles, be brought on their behalf. 8 Simons 272.

Having disposed of these topics, the question arises, whether the plaintiff has shewn that there is such a particular and special injury meditated against him, or which he has reason to apprehend from the acts of the Hartford Bridge Company, that he was entitled to an injunction. And here the proof in the case relieves us from the necessity of examining minutely the principles and authorities applicable to bills for injunction founded on apprehended injuries, which have been so elaborately commented on, by the counsel. Of whatever character it is requisite that the injury complained 0f should be, in order to lay the foundation for this remedy, it is necessary that it should be a substantia], and not merely a technical, or inconsequential, injury. There must not only be a violation of the plaintiff’s rights, but such a violation as is, or will be, attended with actual and serious damage. Even although the injury may be such that an action at law would lie for damages, it does not follow, that a court of equity would deem it proper to interpose, by the summary, peculiar and extraordinary remedy of injunction. 8 Simons 194. rIt is obviously not fit that the power of that court should be invoked, in this form, for every theoretical or speculative violation of one’s rights.j Such an exercise of it would not only be wide from the object of investing those courts with that power, but would render them engines of oppression and vexation, and bring them into merited odium. It is a power which is extraordinary in its character, and to be exercised generally only in cases of necessity, or where other remedies may be inadequate, and even then with great discretion and carefulness. It is a salutary, and indeed, a necessary power, when confined withip those safe limits in which it has been exercised; but capable of being made an instrument of oppression, and therefore to be extended, if at all, with great circumspection. Earl of Ripon v. Hobart, 3 Mylne & Keene 169. 1 Coop. Sel Ca. 333. (8 Cond. Eng. Ch. R. 331. 469.)

In this case, the plaintiff claims only, that his property shall be exposed to no greater danger of injury than it was before the destruction of the dry-bridge, which rendered the rebuilding of the causeway, as contemplated by the Hartford Bridge Company, necessary. Of the causeway, up to the time of such destruction, there is here no complaint. On this subject, it is found, that the buildings on the land of the plaintiff, by the manner in which the bridge company are rebuilding the causeway, will be in no greater danger of being destroyed or carried away, by the floods in Connecticut river, whether ordinary or extraordinary, than before said dry-bridge was destroyed ; that, in times of high floods, the water will rise somewhat more rapidly and suddenly, and somewhat higher, North of the causeway, and continue longer, than it did previous to that event; but to what extent cannot be ascertained by calculation, and is matter of opinion and conjecture ; but not, in the opinion of the court, to such an extent as to injure the land or buildings of the plaintiff, in Value, materially, or to an extent that can be appreciated or estimated; that the productiveness of the land will not be materially diminished ; and that the decay and depreciation of the buildings, and the repairs and inconvenience that they will occasion, will be very small, and not such as will lessen materially the intrinsic value of said land or buildings.

Assuming that the nature of the injury, in this case, is such, that, if it were sufficiently important in point of magnitude, it would warrant the interposition of the court by injunction, and that the existence of the danger is shewn- with such certainty that there would be no objection, on that ground, to granting the relief sought, we are clearly of opinion, without dwelling on the several particulars of the finding on this subject, that the extent of the damage to be apprehended in this case, is wholly insufficient to justify us in applying the peculiar and extraordinary remedy which is sought. The decay and depreciation of the property, the repairs which may be thereby rendered necessary, and the inconvenience which may ensue to the plaintiff, are found to be very small, not capable of appreciation, and not such as will materially lessen the intrinsic value of the plaintiff’s property. We find no precedent, and discover no reason, to warrant the granting of an injunction for an apprehension of injury of such inconsiderable magnitude.

The plaintiff, however, relying on the principles sanctioned in Blachnore v. The Glamorganshire Canal Navigation, 1 Mylne & Keene 154. (6 Cond. Eng. Ch. R. 544..) and the cases there cited, takes the ground that acts of the legislature, like that under which the Hartford Bridge Company are constructing the works in question, are, in the language of Lord Eldon, “ to be regarded in the light of contracts made by the legislature on behalf of every person interested in the thing to be done under them —that the acts, under which the said company are proceeding, form virtually a contract between the company and the neighbouring proprietors that the committee, in the present case, have misconstrued an<^ excee<^ their powers under those acts, and that the of the company are unauthorized ; — and that, therefore¡ irrespective of the extent of the injury which will be inflicted on the plaintiff, they should be restrained from ex-ceecnng their powers, on the principles upon which courts of equity will proceed in enforcing the specific execution of contracts. Without questioning this view of acts of that description, it may well be doubted whether the court would, under the circumstances of this case, grant the relief here sought, if it rested on a formal contract made between the parties ; but there is no authority for believing, that the equity courts in England would; and certainly we are not disposed to carry the analogy which may exist, for certain purposes, between such acts of the legislature and private contracts, to the wide, inconvenient, and unnecessary extent of furnishing the relief here sought, upon the ground of such supposed analogy, in favour of every member of the community, who may experience, or have reason to fear, a trifling inconvenience or an unsubstantial injury, from a departure, perhaps merely literal, from the provisions of such acts.

The plaintiff also claims, that he is entitled to relief, on the ground that the Hartford Bridge Company are reducing their causeway below the height which their charter permits, and that they may be compelled to raise it to the height which it requires ; in which case, as the court finds, the water will, with the reduced amount of sluiceway, be so raised as to expose the buildings of the plaintiff to great injury and destruction. It is not, however, found, that the company have depressed the causeway below what the charter warrants ; and if they had, and should be compelled to raise it, it is not to be presumed that they would, in that case, neglect to enlarge the outlet for the increased accumulation of water. The state of things which the plaintiff here supposes and apprehends, is not found to be meditated by the company ; and it is proper to wait until it actually exists, or is threatened, before the requisite remedy shall be applied.

This view of the case supersedes the necessity of enqui-ring what is the true construction to be put on the resolution of the legislature of 1841, which is not unattended with difficulty ; or whether the committee appointed by that resolution are properly made parties to this bill.

The superior court, for these reasons, should be advised that the bill ought to be dismissed.

In this opinion the other Judges concurred, except Win-liams, Ch. J., who gave no opinion, being disqualified by interest in the event of the suit.

Bill dismissed.