54 Mass. 297 | Mass. | 1847
The court are clearly of opinion that this action cannot be maintained on the Rev. Sts. c. 25, § 22. They give a remedy to any one who has received “ any injury in his person or property by reason of any defect, or want of repair.” The construction, which has been put on this provision, and which we consider a just one, is, that it must be a damage sustained in using the road, and also in using it with due care and skill. Tisdale v. Inhabitauts of Norton, 8 Met. 388. Adams v. Inhabitants of Carlisle, 21 Pick. 146. The special damage, for which this statute gives a remedy, must be one of which the defect in the highway is the direct and proximate cause. That damage, which a party sustains, in consequence of not being able to use a highway, is one which he sustains, in common with all the rest of the community, from the failure of the town to perform a public duty, and can be properly redressed only by a public prosecution. Were it otherwise, every individual in the town or the adjoining towns, who owns a team or carriage, and would occasionally find it convenient to use the road, would have a separate action. Co. Lit. 56 a. 3 Mod. 294. 3 Wooddeson, 190.
Even in an action at common law, where one sues to recover special damage, for an injury sustained by an obstruction in a highway, it must be shown that his damage is special, and peculiar in kind, as by driving against a log ; Fowler v. Sanders, Cro. Jac. 446; or falling into a ditch, Co. Lit 56 a. Carth. 194. The damage arising from being
But an action at common law will not lie against a town : and, to recover damage, a party must bring his case within the statute. Mower v. Inhabitants of Leicester, 9 Mass. 247.
Judgment, on the demurrer, for the defendants.
