Hughes v. Heiser, 1 Binn. 463

Hughes v. Heiser

1 Binn. 463 | Pa. | 1808

The opinion of the court was delivered by

Tjxghman C. J.

This cause comes before the court on a writ of error to the common pleas of Berks county. It is an action on the case for damages occasioned to Heiser the plaintiff below, who is defendant in error, by the defendants obstructing the navigation of the Big Schuylkill, which was made a public highway by act of assembly.

The plaintiff" in error contends that the declaration contains no cause of action, because it shews no special damage sustained by the plaintiff below.

*468The general principle has been always agreed, that for ao ' obstruction to a highway, which is a common nuisance, an action cannot be supported, but by a person who has suffered some special damage. ■ But in the application of this rule to the different cases which have arisen, there have been decisions ' which are not to be reconciled. In Hart v. Basset (33 Car. 2.) sir T. fones 156, an action was supported by a person entitled to receive tithes, who in consequence of an obstruction in the highway, was forced to carry his tithes by a circuitous route. The declaration alleged that he was forced to carry them by a longer and more difficult xvay, and no other damage was shewn. In Paine v. Partrich (3. Wm. and Mary) Carth. 194, the court áre made to say, that if by a common nuisance a man is delayed in his journey, by reason whereof he is damnified, and some important affair neglected, an action does not lie, because to support an action the damage must be direct, and not consequential; as for instance, the loss of his horse, or some corporal hurt. Such seems to have been the opinion of C. J. Holt in Iveson v. Moor, (10 Wm. 3.) Carth. 451, where the plaintiff alleged that he had a great quantity of coals (he being possessed of a colliery and coal mine) which he was prevented from carrying in his carts and carriages, by reason of an obstruction in the highway raised by the defendant. One of the other j ustices of the king’s bench agreed with Holt; but the two others were against him. In consequence of this difference of opinion, the case was laid before all the judges on a consultation in the exchequer chamber, and they were of opinion the action lay. Willes Rep. 74. note a. In Chichester v. Lethbridge (11 Geo. 2.) Willes. 71. the plaintiff averred that at divers times between two certain days, he was travelling in his coach in a certain highway, but the defendant obstructed the said way by bars, posts, trenches, &c. and in his proper person withstood the plaintiff from removing and abating the obstruction, so that the plaintiff then and hitherto could not and cannot have or use the said xbay as he ought, to his damage forty pounds. The court were of opinion, that particular damages were assigned sufficient to support the action, and cited Hart v. Basset in support of their opinion. They said, this case was stronger than Hart v. Basset in two particulars, one of which was “ that “ it was expressly laid that the plaintiff was attempting to tra- “ vel the road, but could not by reason of the obstructions.” *469This case of Chichester v. Lethbridge appears to be the last adjudged in England on the subject, prior to our revolution. Since' the revolution, the case of Hubert v. Groves (shortly reported in 1 Esp. 148.) has been adjudged in express contradiction to Hart v. Basset. This case of Hubert v. Groves, is no authority here, and no further to be regarded than its intrinsic merit demands. There is no occasion, however, to decide to which of these cases the court inclines, because they think the cáse before them stronger than either. The plaintiff has averred that he had procured a large quantity of boards and timber,, and made them into rafts to bring down the river; that he seized the opportunity of a flood, and did come down as far as the obstruction, and was there stopped by the obstruction. It is certain that he must have suffered special damage, and the jury have found so; and if he has, it is immaterial whether it was immediate or consequential.

The court are of opinion, therefore, that the judgment in the court below was rightly given for the plaintiff, and must be affirmed.

Judgment affirmed.