2 Ind. 162 | Ind. | 1850
This was an action on the case founded on tort. The plaintiffs in error were the plaintiffs below. General demurrer to the declaration, and judgment for the defendants.
The first count is substantially as follows:
That before the committing of the grievances hereinafter mentioned, to-wit, on, &c., at, &c., there were,established and used certain highways (which are described) in Franklin county, which highways had been made by the plaintiffs at an expense of 20,000 dollars; that until the committing of the grievances hereinafter mentioned, there was no necessity for the erection or maintenance of bridges along said highways, but that the same were in good repair; that the plaintiffs then and there had the care and superintendence of said highways, and were bound to repair the same; that, afterwards, to-wit, on, &c., at, &c., the defendants made a canal through said county for their own exclusive profit, and crossed and obstructed, at divers places in said county, the said highways, and rendered them wholly waste and unfit to travel over; that thereby the money, so as aforesaid expended by the plaintiffs, was wholly lost, and they had been obliged to expend in building and repairing bridges across said canal the further sum of 20,000 dollars.
There are two other counts which are, in some respects, similar to the first.
We see no substantial objection to the first count as respects the defendant, Coffin. By making the canal across said highways, he has, for aught that appears, created a public nuisance. He may be indicted for such nuisance, because of the injury it occasions to the public generally. 4 Blacks. Comm. 167. — R. S. p. 974. He is also liable, in a civil suit, to any person who may have sustained any special damage by the offence. Thus, where a person driving laden asses was delayed several hours in consequence of the defendant’s keeping a gate shut across a highway, it was held that an action on the case would lie for the particular damage thus sustained. Greasly v. Codling et al., 2 Bingh. 263. See, also, Martin v. Bliss, 5 Blackf. 35. The law makes it the duty of the county commissioners to have bridges built and kept in repair, where necessary, on the highways in the county. R. S. p. 333. If, in consequence of Coffin's making the canal, the plaintiffs have been obliged, as they allege, to build or repair a bridge or bridges in the county where the canal crosses said highways or any of them, they (the plaintiffs) have received a special damage by the nuisance, and may sue the offender, in an action on the case, for such damage.
The case is, however, different as to the other defendants — the White Water Valley Canal Company. They were authorized, by a public law, to make this canal and take tolls thereon, on the condition, among others, that they would build suitable and convenient bridges where the canal should cross highways. Acts of 1842, pp. 37, 42. We have no doubt but that the canal company are bound, not only to build the bridges, but also to keep them in repair. They have constructed a canal for their own benefit, and have destroyed the highways where they are crossed by the canal. The maxim, Qui sentit commodum sentiré debet el onus, applies to the case. This doctrine is settled by authority. Wc will notice some of the
The second count alleges that both the canal company and Coffin were authorized to make the canal, &c. The objection to the first count, which we have noticed as applicable to the company, exists as to the second count, and applies to Coffin as well as to the company.
The third count alleges no special damage, and is bad for that reason.
As this is an action against two defendants, founded on tort, and the first count contains a good cause of action against one of the defendants, the demurrer to the whole declaration should not have been sustained.
The judgment is reversed, and the proceedings subsequent to the demurrer set aside, with costs.