175 Pa. 623 | Pa. | 1896
Opinion by
The defendant company contends that if the plaintiff has .sustained any damage by reason of its erection and maintenance of the fence across Tacony road he must “ have recourse to the city for compensation ” for it. Tins contention appears to be based on the theory that the obstruction complained of was incident to the work of raising its roadbed to conform to the revision of grades authorized by the ordinance of March 31, 1887, and that for damage done in the proper performance of such work the company is not responsible. But it is obvious that the question whether the company or city is hable for the damage caused by the company’s elevation of its roadbed in accordance with the revision of grades is not in this case. The
The important question in the case is whether the plaintiff has sustained such loss or damage in consequence of the obstruction of the highway as will support his action against the wrongdoer. “ A private action for a public nuisance is maintainable by one who suffers therefrom some particular loss or damage-beyond that suffered by him in common with all others affected by the nuisance. Interference- with a common right does not. of itself afford a cause of action by an individual. Special or-particular damage consequent on the interference does. There-is no difficulty in this general statement of the rule and the-exception. It is supported by all the cases. The difficulty is-in the application to the facts of the cases wherein the rule has been invoked: ” 16 Am. & Eng. Ency. of Law, 971. The business of the plaintiff was excavating and hauling dirt and stone-for grading and building purposes. At the time the fence was-erected across Tacony road he had contracts with different par
In an amended statement filed on the 12th of November, 1894, the plaintiff averred that a gutter in front of his property •formerly conveyed the surface water into a wooden conduit through which it flowed into a ditch on the west side of the railroad tracks, and that the defendant company, after the erection of the fence willfully and-negligently permitted the eastern end of •of said conduit at its junction with the ditch on its land to become clogged with rubbish and dirt which prevented the free passage of the water, and forced it back upon the Taeony road ¡so as to form a stagnant pool in front of his premises which interfered with access to the same, and was prejudicial to the health of himself and family. He testified on the trial in support of these averments and was corroborated to some extent by ■other witnesses. It seems to us however that the testimony in regard to the stagnant pool and its effect upon the plaintiff’s property and the health of himself and family is not convincing or satisfactory.- It is noticeable that it is not averred in the amended statement that the stagnant pool was formed before the roadbed was raised and that the testimony of Leonard and Saunders indicates that it was not. But as there is no specifi•cation of error which calls in question the sufficiency of the testimony or the accuracy of the instructions in regard to it we need not further consider this branch of the case.
It is not possible to reconcile all the cases in which the question whether a private action is maintainable for a loss ooca
We conclude from the evidence in the case before us and from the decisions of tins court applicable to it, that the plaintiff suffered special injury by reason of the erection and maintenance of the fence across Tacony road, and that he was entitled to compensation for it in this action. The first specification of error is overruled.
Judgment affirmed.