Evans v. Chicago, St. Paul, Minneapolis & Omaha Railway Co., 86 Wis. 597

86 Wis. 597 | Wis. | 1893

Cassoday, J.

It sufficiently appears -from the foregoing statement that since the construction of the depot mentioned the defendant had used the street opposite the plaintiff’s lot in such a manner as to completely obstruct all travel with teams thereon, and to entirely destroy the use of the same as a public highway, and thereby prevented the plaintiff’s former customers, and other persons who would otherwise have done business with him at his warehouse and elevator, from having access to or egress from the same, and that by such action- the defendant has destroyed the plaintiff’s business and rendered his premises of but very little value. If such obstruction was wrongful, unlawful, and -without permission or authority from the plaintiff or his grantor or the city of Hudson, as alleged, then it certainly constituted a public nuisance, and subject to be abated as such. Elliott, Roads & S. 477 et seq. But, to entitle a private party to maintain an action for such public nuisance at common law, it must appear that he has suffered some special or peculiar damage, differing, not merely in degree, but in kind, from that which is deemed common to all. Carpenter v. Mann, 17 Wis. 155; Zettel v. West Bend, 79 Wis. 316; Hay v. Weber, 79 Wis. 591. But here the complaint alleges such special and peculiar damage, and hence states a good cause of action at common law. Walker v. Shepardson, 2 Wis. 384; Enos v. Hamilton, 27 Wis. 256; Pettibone v. Hamilton, 40 Wis. 402; Burrows v. Pixley, 1 Root, 362, 1 Am. Dec. 56; Stetson v. Faxon, 19 Pick. 147, 31 Am. Dec. 123; Iveson v. Moore, 1 Ld. Raym. 486; Wilkes v. Hungerford Market Co. 2 Bing. N. C. 281; Goldthorpe v. Hardman, 13 Mees. & W. 377; 16 Am. & Eng. Ency. of Law, 971 et seq. Such right of action at common law has not been taken away by the English statutes. Beckett v. Midland R. Co. L. R. 3 C. P. 82; McCarthy v. Metropolitan Board, L. R. 8 C. P. 191, affirmed L. R. 7 H. L. 243; Fritz v. Hobson, 14 Ch. Div. 542; Truman v. L., B. & S. C. R. Co. 29 Ch. Div. 89; Caledonian R. Co. v. Walker's Trustees, 7 App. Gas. 259; Rapier v. London T. Co. [1893] 2 Ch. 588. Some of these cases are quite analo gous to the case at bar. Thus in Fritz v. Hobson, 14 Ch. Div. 542, it was expressly held that, “ when the private right of the owner of a house adjoining a highway to access from his house to the highway is interfered with by an unreasonable use of the highway, he is entitled to recover damages from the wrongdoer, in respect of loss of custom in the business which he carries on in his house.” Our statute is confirmatory of the common law, and declares, in effect, that the circuit courts shalL have jurisdiction of actions to recover damages for and to abate a public nuisance from which any' person suffers a private or special injury peculiar to himself, so far as necessary-to protect the rights of such person, and to grant injunctions to prevent the same. R. S. sec. 3180.

According to the complaint, the defendant has had no authority, as against the plaintiff, to obstruct the street in front of his premises, except under and by7 virtue of the instrument in writing whereby there was granted to the defendant’s predecessor “the right to construct, maintain, and operate its railroad ” in the street, “ in front of said lot, . , . as the same was at the date of said instrument constructed.” Of course, this grant gave to the defendant’s predecessor, and so to the defendant, all the rights which are thereby necessarily implied. But manifestly it gave to neither the right to destroy the street as a public highway in front of the plaintiff’s lot. The statutes only authorized such construction and maintenance of such railroad in the street on condition that the company should restore the highway “ to its former state, or to such condition as that its usefulness ” should “ not be materially impaired, and thereafter maintain the same in such condition against any effects in any manner produced by such railroad.” R. S. sec. 1828, subd. 5, and sec. 1836. It has repeatedly been held that such duty is enforceable by the courts. Jamestown v. C., B. & N. R. Co. 69 Wis. 648; Oshkosh v. M. & L. W. R. Co. 74 Wis. 534; State ex rel. Grady v. C., M. & N. R. Co. 79 Wis. 259. Thus, it appears that the obstruction and interference with the street complained of, were not authorized by statute. The case, therefore, is clearly distinguishable from that class of cases where the incidental injury complained of is the necessary result of an authorized taking of land and the proper and authorized use of the same.

“ A railroad company cannot monopolize a street, in derogation, of the public and private use to which it has been applied.” Janesville v. M. & M. R. Co. 7 Wis. 484. In Farrand v. C. & N. W. R. Co. 21 Wis. 439, Dixon, C. J., said: “ The company has no right to appropriate the whole or any part of the street to its own exclusive use, as for side tracks, switches, engine houses, depot buildings, and the like, and so destroy the public right of way.” In Penn. R. Co. v. Angel, 41 N. J. Eq. 316, it was held that “a railroad company using, for the purposes of a terminal yard, a portion of a street over which it has only a right. of way, is responsible for any nuisance, public or private, thereby created.” The same rule was applied in the Same state, where, as here, the railway company acquired the right to lay its track in a public street by grant. Thompson v. Penn. R. Co. 45 N. J. Eq. 870. In Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U. S. 329, Mr. Justice Field, speaking for the court, said: “ The engine house and repair shop of the railroad company, as they were used, rendered it impossible for the plaintiff to occupy its building with any comfort as a place of public worship. . . . Plainly, the engine house and repair shop, as they were used by the railroad company, were a nuisance in every sense of the term. . . . For such annoyance and discomfort the courts of law will afford redress by giving damages against the wrongdoer, and when the cause of the annoyance and discomfort are continuous courts of equity will interfere and restrain the nuisance.” S. C. 137 U. S. 568. See, also, New York El. R. Co. v. Fifth Nat. Bank, 135 U. S. 432. In Truman v. L., B. & S. C. R. Co. 29 Ch. Div. 89, the railway company, under the authority of an act of Parliament, purchased a piece of land adjoining one of its stations, and used it as a cattle dock; and yet it was held that the act gave the company no authority to create a nuisance to occupiers of houses near the cattle dock by herding cattle therein. So, in Rapier v. London T. Co. [1893] 2 Ch. 588, it was “ held that, although horses were necessary for the working of the tramways, the company -were, not justified by their statutory powers in using the stables so as to be a nuisance to their neighbors, and that it was no sufficient defense to say that they had taken all reasonable care to prevent it.”

The obstruction of the passage to and egress from the warehouse and elevator in question by means of a permanent embankment, the storing of cars, and other mere depot uses, is not only in contravention of the express terms of the grant, but also of the mandate of the statute cited. Upon authority and reason, we must hold that the complaint states a good cause of action.

By the Court.— The order of the circuit court is affirmed.