43 Iowa 636 | Iowa | 1876
The objection, based upon alleged errors appearing in the record, will not be considered in the order we find them discussed in the arguments of counsel. In our opinion they naturally present themselves to the mind in a different order, in which they may be more conveniently and satisfactorily discussed.
The defendants’ counsel maintain that the instructions given are erroneous, because the doctrine presented therein is in conflict with the law.
The position of counsel is based upon the familiar rule that a nuisance which affects only the public is not the ground of an action in favor of an individual to recover for damage sustained thereby. The rule cannot be questioned. As long as a nuisance affects a person only as a member of society and he is not injured thereby differently from the public at large, he has no remedy for the injury he sustains.
This conclusion is in harmony with the reason upon which the rule, denying to an individual a remedy for a public nuisance, has its foundation. It is this. -If an individual may maintain an action for an injury which affects the public, then all may sue. Here would be a multiplicity of actions, which, being against public policy, the law will not permit. Coke’s Institutes, 56a.
' That a nuisance may be both public and private, in its first character being no ground for a private action and in its second affording a cause for the recovery of damages by an individual injured, is recognized by many authorities. See Wood’s Law of Nuisances, §647, and cases cited.
II. The citizen who sustains injuries distinct from those suffered by the public at large may have a-remedy against.one maintaining a nuisance.- Such injuries are called' sometimes special and' peculiar, and are described as the invasion of individual rights, that is, of rights held by the individual distinct from those which he holds as a member of society.
■ III. While this rule is well settled its application is often attended with great difficulty. Apparent, rather than real conflict is found in the cases involving this doctrine. This results not from any uncertainty in the rule, but different
In such cases actions may be maintained though many persons, other than the plaintiffs, sustain, from the same nuisances, like injuries. See Wood’s Law of Nuisances, §662, and authorities cited.
That the obstruction of a highway, whereby the property of an individual is rendered less valuable as a place of business, affords a ground of action for damage is clearly within the principles above stated, we cannot doubt. The right to the enjoyment of property is an individual right, which in no manner pertains to the public; it is held distinct and separate from the rights possessed on account of the individual being a member of society. He travels the highway in the exercise of the rights he possesses in common with the public. If deprived of that right he could not maintain an action. .Therefore he could base no claim for damages on the ground of being deprived of the use of the highway by an obstruction. But if the highway gives value to his property by affording access thereto by himself and others, he is deprived of an individual right to the enjoyment of the property in its most useful condition by a músanse which obstructs travel upon it. This illustration serves to point out the distinctions between such injuries resulting from a nuisance for which an action will lie, and those that are not actionable.
This instruction authorized the jury to estimate the rental value of the property as it was affected by the obstruction in order to determine the damages. This, it is urged, is erroneous because no such damages are claimed in the petition. The objection is not well founded. The claim for damage is general and the petition alleges that the obstruction of the highway was an injury to plaintiff in that it interfered with the use of the property. The extent of plaintiff’s damage from the injury to the use of the property could be determined by showing the effect of the obstruction upon its rental value. The property .was used for business-purposes. The extent of the depreciation of his business on account of the obstruction was properly held by the court as a matter to be considered by the jury in estimating plaintiff’s damage, as it affected the rental value. Frances v. Schaellkoppf 53 N. Y., 152; Stetson v. Faxon, 19 Pick., 147.
YI. The doctrines above announced are not in conflict with those recognized in Prosser v. City of Ottumwa, 42 Iowa, 509. In that case the plaintiff’s property which was injured was not located on or near the street obstructed. While the obstruction diverted the travel from the street, the highway leading to plaintiff’s property was not obstructed. The ground of his claim was that the travel upon the obstructed street was diverted from the highway leading to his ferry. We held that while the city would not be liable to plaintiff for vacating the street, it could not be held liable for diverting the travel by permitting obstructions thereon. The plaintiff’s
• YII. It is insisted that the verdict is excessive. We cannot concur in this view and are of the opinion that the evidence justified the jury in their finding of the amount of plaintiff’s damage. The judgment of the Circuit Court is
Affirmed.