24 Mich. 508 | Mich. | 1872
Clark was sued in trespass for tearing down tbe ice-house of the defendant in error, and justified the act as done in the abatement of a nuisance to a public highway, in which he alleged the erection to be an unlawful obstruction. The suit was brought in December, 1870, and the trespass was committed shortly previous.
The first error assigned relates to the admission of testimony of the value of storing six hundred tons of ice in’ the building, that having been shown to be its storage capacity.
We do not see any error in this. Tbe building was put up for no other purpose than, holding ice, and its destruction completely -defeated that purpose. The damage was expressly set out in the declaration, and nothing could be more directly or inevitably tbe result of tbe grievance. The testimony came within tbe rules laid down by us on various occasions. — Chandler v. Allison, 10 Mich. R., 460 ; Alli
We must assume that the court would charge properly, had any request been made as to the time to be covered, and if damages were excessive, a motion for a new trial would have been permissible. The mischief was done at the beginning of the season, and there is no evidence to show that the damages were any more than would have been inevitable under the circumstances.
• Certain testimony having been given concerning the condition and extent of the highway, a witness was asked: “Was the erection of the ice-house an obstruction to the road ?” He answered : “I do not know of any obstruction; the shed was ten feet from the road.” The objection taken to this was,, that it was incompetent, and the reason
The remaining questions all relate to the right of Clark, as a private citizen, to abate the supposed nuisance, and the relative rights of the parties on that basis.
There is nothing in the evidence or bill of exceptions showing that he attempted to make out any necessity for his action, or any special grievance. It is not stated that any evidence was offered tending to show that he was specially injured, or injured at all, in person, property, or convenience.
A public nuisance, clearly made out, cannot be lawfully abated by any private person not specially grieved by it. It must directly injure or annoy him individually. The law is briefly summed up on the authorities, in Dimes v. Petley, 15 Q. B., 276, as follows: “ That if there be a nuisance in a public highway, a private individual cannot of his own authority abate it, unless it does him a special injury, and he can only interfere with it as far as is necessary to exercise his right of passing along the highway; and, without considering whether he must show that the abatement of the nuisance was absolutely necessary to enable him to pass, we clearly think that he cannot justify doing any damage to the property of the person who has improperly placed the nuisance in the highway, if, avoiding it, he might have passed on with reasonable convenience.”
It is further to be borne in mind that every encroachment is not a nuisance, and it is a question of fact, and not of law alone, whether it becomes so. It must become a source of annoyance and inconvenience to the public before it is a nuisance, and it must interfere with the use of the way for the purposes of a way. — People v. Carpenter, 1 Mich. R., 273. The owner of the soil is not punishable for a nuisance in using any portion of it in such a way as not to interfere with the public convenience.
If Clark had no right to interfere with the building destroyed, he is responsible for it as if it had been any where else. lie could not assume that it would ever be disturbed, and he was bound to know it could not be interfered with by any but authorized parties. The presumption is in favor of the legality of a possession until its illegality is shown, and if it is not a public nuisance the possession could not lawfully be disturbed without regular proceedings in a legal way.
The other points become immaterial. The judgment' must be affirmed, with costs.