69 N.J.L. 505 | N.J. | 1903
The opinion of the court was delivered bj
The declaration avers that the plaintiff was lawfully possessed of three'farms, situate in Wayne township, in the county of Passaic. Farm No. f contains a dwelling-house, barn arid outhouse’s; farm No.’2 is distant about three
It will be observed that the default with which the defendant is charged amounts to a common nuisance. The demurrer raises the question whether the plaintiff is entitled to maintain a private action to recover the damage accruing to him therefrom.
In order to .maintain an action for obstructing a public way the plaintiff must have sustained some special damage peculiar to himself beyond that suffered by the rest of the public who are entitled to use the way. ■ It is sometimes said ■to be necessary that the plaintiff’s injury should be, not only greater in amount, but' different in kind from that suffered by citizens in general.
Where there is a ditch in the road or an obstruction across
Viewing the present plaintiff simply- as a property owner, it would seem that his possession of each of the three farms must be treated as separate and distinct from his possession of the others. Dealing with either farm alone, the damage to the plaintiff is, perhaps, too remote, to form the basis of a private action.
In Wilkes v. Hungerford Market Co., 2 Bing. (N. S.) 281, where the plaintiff, who had a shop by the side of a public thoroughfare, suffered a loss of business in consequence of passengers having been diverted from the thoroughfare by the unauthorized continuance of an obstruction across it, it was held that this was a damage sufficiently of a private nature to form the subject of an action. But this ease was substantially overruled by the decision of the House of Lords in Ricket v. Metropolitan Railway Co. (1867), L. R., 2 H. L. 175; 1 Eng. Rul. Cas. 573, 587; affirming S. C., 5 B. & S. 156; 34 L. J. Q. B. 237; since which case the English courts have adhered to a limitation of the rule with respect to landowners that confines the right to maintain a private action practically to the owners of property adjacent to the nuisance. Benjamin v. Storr, L. R., 9 C. P. 400; 19 Eng. Rul. Cas. 263.
But the present declaration exhibits the plaintiff in the
- The decision in Mehrhof v. 'Delaware, Lackawanna and
The case having been submitted upon printed arguments, and counsel for demurrant having addressed themselves solely to the question whether the declaration shows such a special and peculiar damage to the plaintiff as to entitle him to maintain a private action, we have considered no other question. We therefore pass no judgment upon the question whether the declaration shows a legal duty on the part of the defendant to erect, maintain and repair the bridge in question.
The demurrer will be overruled.