Holmes v. Corthell

80 Me. 31 | Me. | 1888

Haskell-, J.

Trespass for obstructing a public waj' by building a stone wall across it, whereby the plaintiff claims to have suffered special damage.

The distinction between trespass and trespass on the case is abolished by R. S., c. 82, § 15. "A declaration in either form is good.” Hathorn v. Eaton, 70 Maine, 219.

It is settled in this state that one who suffers special injury, no matter how inconsiderable, from a common nuisance, may recover damages in an action at law from the person creating it; R. S., c. 17, § 12; Brown v. Watson, 47 Maine, 161 ; Dudley v. Kennedy, 63 Maine, 465 ; and from the person maintaining it after, request to abate it. Pillsbury v. Moore, 44 Maine, 154.

Three demurrers to the declaration have been tiled, and two amendments of it have been allowed. To the sustaining of the last demurrer to the declaration as finally amended, the plaintiff has exception.

The declaration avers the existence of a public way and the obstruction of it by the defendant in erecting a stone wall across it, whereby on a given day and on divers other days and times, etc., the plaintiff, in attempting to travel upon such way, was "hindered, obstructed and prevented from passing” along it, and " incurred great danger and suffered great pain and inconvenience in attempting to climb and pass over said wall,” and thereby was injured in his comfort, property, and the enjoyment of his estate.

The plaintiff avers that he was "hindered,” etc., from passing along the way ; be it so ; no averment shows any specific damage from this hindrance; it does not appear that upon any special occasion he was thereby compelled to make a longer detour to reach a particular place where he had need to go, nor that he lost any time or was put to any expense thereby.

Ho may have incurred danger and suffered pain in trying to climb the wall, both of which may have resulted from his own careless or rash conduct, for which the defendant is not responsible.

The plaintiff avers that certain of the work people in his sardine factory " were hindered and prevented from going to and attending’ to their work, whereby he lost and was deprived of their services.” Suppose this to be true, where is the injury to the plaintiff? He does not aver the loss of their service to be at his cost, n'or that their services, if rendered, would have been of any. value to him. Upon this score the plaintiff does not appear to have suffered any damage.

Exceptions overruled.

Peters, C. J., Walton, Danforth, Yirgin and Libbey, JJ., concurred.