73 Neb. 794 | Neb. | 1905
The issues and facts in this case are thus stated in the brief of appellant, and, as they appear not to be in dispute,- we adopt the recital. The case was submitted without oral argument.
The plaintiff in his petition alleged that there was a public highway leading south from Brady Island, across a bridge over the Platte river, to the south side of said river,
The wrongs of which the plaintiff complains appear to us to be divided between two distinct categories which he and the trial court seem to have confused. If it be true that the defendant, as the immediate consequence of his obstruction of the highway, if it was a'highway, inflicted a special and peculiar damage upon the plaintiff by preventing him from hauling his hay to market, an action at law would have afforded speedy and adequate redress therefor. This consequence of the wrongful act, if it were such, was immediate, and did not differ materially in its alleged effect upon the plaintiff from that of an ordinary act of trespass of Avhich equity has no jurisdiction. If, subsequently, the defendant continued to obstruct a public highway so as to render the same unsuitable for travel, the injury, if any, which the plaintiff experienced therefrom was suffered in common with the rest of the public, and was not in any sense special or peculiar to himself, and was therefore one which could be redressed only at the suit of the public. There is, happily, as little dispute between counsel about the law as there is about the facts, though a large number of authorities illustrative of its various phases are cited in behalf of each party. We do not think that it is incumbent upon us to review them here. It is familiar law that the process of injunction cannot be availed of by a private citizen to abate a purely public nuisance from which he suffers no special or peculiar injury of a continuing nature for which an action at
Tested by these rules, it is quite evident that the suit cannot rightfully be maintained, and we recommend that the judgment of the district court be reversed and the action dismissed.
By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be reversed and the action dismissed.
Reversed,