1 Blackf. 88 | Ind. | 1820
We learn from the record in this case, that the president and trustees of jYeus-Albany commenced an action of trespass in the Circuit Court against Conner; in which issue was joined on the plea of not guilty, and a verdict and judgment were rendered for the plaintiffs. • The only evidence of trespass was that of digging up the soil, so as to form a road across one of the streets in said town. On this evidence the Circuit Court instructed the jury, that the president and trustees of the town of New-Albany, bad a right to maintain the action by virtue of the qualified possession which, bylaw, they had in the streets of the town. To which opinion of the Court Conner excepted; and.
The judgment is reversed, and the verdict set aside, with costs. Cause remanded, &c.
Ind. Stat. 1816, p. 125. — Vide Ind. Stat. 1823, p. 414. — Annoyances in highways, bridges, and navigable rivers, by rendering them inconvenient or dangerous to pass, are common nuisances, and may be abated by any person, passing that way. 5 Bac. Abr. 150, 152. To prevent a multiplicity of suits, individuals are not permitted to sue in these cases of general inconvenience; indictment being the only remedy. Co. Litt. 56, a. — 4 Bl. Comm. 167. But if there be aparticular damage, an action lies; as, if by stopping up a highway with logs, the party he thrown from his horse and injured. 5 Bac. Abr. 153. And the injury need not be personal; as, where a person moored a barge across a navigable creek, and another was thereby prevented from navigating it with laden barges, and was put to the trouble and expense of conveying his goods some distance over land, an action, on the case was sustained. Rose v. Miles, 4 M. and Selw. 101. So, where the party shut a gate across a public highway, and a person travelling with laden asses was thereby stopped, and obliged to go a circuitous route, with an obvious loss of time and profit, case was held to lie. Greasly v. Codling, 2 Bingh. 263.
To maintain trespass q. c. f., the general doctrine in the English hooks is, that the plaintiff must he in actual possession at the time the injury is commit
In the case in the text, the president and trustees of the town, had neither the general property,, nor the actual possession, of the locus in quo. The fee