Sargent v. George

56 Vt. 627 | Vt. | 1884

The opinion of the court was delivered by

Taft, J.

I. It is unnecessary to construe the deeds referred to in this case. Whatever construction is given them, the bill must be dismissed.

II. A person who suffers special damage from the erection and maintenance of a public nuisance is entitled to relief in his own right; but it must appear that the injury is distinct from that suffered by the general public. It is not certain whether that point is established in favor of the orator.

III. If the fact of special damage is shown, fully established by the proof, there is one reason why the orator must fail. The damage complained of is, that he is obstructed in a passage-way from his house to the street; a few rods distant from'the way in question he has another, equally as available, sufficient in every respect, and in daily use. There is no necessity for more than one way. The injury to him is nothing-more than mere fancy. In order to entitle a party to an abatement of a public nuisance, by injunction, he must show that the injury of which he complains is such in its nature and extent as to call for the interposition of a court of equity. Stanford v. Lyon, 37 N. J. Eq.; High Inj. sec. 762, note 5. “Of whatever character it is requisite that the injury complained of should be, in order to lay the foundation for this remedy, it is necessary that it should be a substantial, and not merely a technical or inconsequential injury. There must not only be a violation of the orator’s rights, but such a violation as is, or will be, attended with actual or serious damage. Even although the injury may be such that an action at law would lie for damages, it does not follow that a court of equity would interpose by the summary, peculiar, and extraordinary remedy of injunction.” 8 Simons, 194; Bigelow v. The Hartford Bridge Co. 14 Conn. 565. It is a power to be exercised only in cases of necessity, where other remedies may be inadequate, and then with great discretion and carefulness. Testing the orator’s case by these rules, • it is clear to us that' the decree of the Court of Chancery should be reversed and the cause remanded with á mandate that the bill be dismissed with costs.