Walls v. Smith & Co.

52 So. 320 | Ala. | 1910

SAYRE, J.

The text-books and adjudicated cases are agreed that for an obstruction of a public- and common right of way no private action will lie, unless it be alleged 'and shown that the plaintiff has thereby suffered injury peculiar to himself; that is, different in kind and degree from that suffered by the public. The reason for this rule, accepted from the beginning as sufficient, is that the offender should be punished by indictment as for the maintenance of a common nuisance, or the nuisance be abated by bill in equity in the name of the state; for otherwise suits would be multiplied intolerably. — Stetson v. Faxon, 19 Pick. (Mass.) 147, 31 Am. Dec. 123, note; Wood on Nuis. § 646; Joyce on Nuis. § 218 et seq., where many cases are cited. See also, Baker v. Selma Street Ry. Co., 135 Ala. 552, 33 South. 685, 93 Am. St. Rep. 42, and First Nat. Bank v. Tyson, 133 Ala. 459, 32 South. 144, 59 L. R. A. 399, 91 Am. St. Rep. 46. The reported cases show that the courts have been much vexed in the application of this general principle to particular cases. This much, however, seems clear: That if one’s access from his property to the highway be so materially impaired as to affect its value, or if, while attempting to use the highway, one sustains'direct injury to his person or property, an action will lie. And here we note the absence from the complaint in this case of any averment of injury of either kind. But where the obstruction is so remote from plaintiff’s property as not to affect its permanent or rental value — and in this case there is no allegation that the value of plaintiff’s property was impaired — so that the plaintiff is merely driven to a circuitous route or a longer road, the authorities hold that no peculiar injury is shown, but only an interference with the common right of passing and repassing.

Thus in the modern English case of Winterbottom v. Lord Derby, L. R. 2 Exch. 316, it was held, upon consideration of many cases, that if the plaintiff proves no special damage to himself beyond being delayed on several occasions in passing along a highway, and being obliged, in common with all others who would, use the way, either to go by a less direct road or to remove the obstruction, he cannot maintain an action. It was urged that actual delay was a cause of action. But the court said: “In this case, where the plaintiff, on one or more occasions, merely went up to the obstruction and returned, and on other occasions went and removed the obstruction — that is to say, he suffered an inconvenience common to all who happened to pass that way— I think that to hold the action maintainable Avould be equivalent to saying it is impossible to imagine circumstances in Avhich such an action could not be maintained.” In the Massachusetts case of Blackwell v. Old Colony Railroad Co., 122 Mass. 1, plaintiff complained that the defendant had prevented the use of his wharf in his business of selling, shipping, and storing merchandise, by building a bridge across a navigable stream and arm of the sea, and sought to recover the loss of income and profits from his business. The court said: “The fact that the plaintiff alone now navigates the stream, or has a wharf thereon at which he carries on business, only shows that the present consequential damage to him may be greater in degree than to others, but does not show that the injury is different in kind, or that other riparian proprietors and the rest of the public may not, whenever they use the stream, suffer in the same way. The case has no analogy to those in which an obstruction in a navigable stream sets back the water upon the plaintiff’s land, or, being against the front of his land, entirely cuts off his access to the stream, and thereby causes a direct and peculiar injury to his estate or in which the carrying of an offensive trade creates a nuisance to the plaintiff.” And a demurrer was sustained. To the same general effect are the following, among other cases which might be mentioned: Houck v. Wachter, 34 Md. 265, 6 Am. Rep. 332; Clark v. Chicago, etc., Ry. Co., 70 Wis. 592, 36 N. W. 326, 5 Am. St. Rep. 187; Shaubut v. St. Paul, etc., R. R. Co., 21 Minn. 502; McCowan v. Whitesides, 31 Ind. 235; O’Brien v. Norwich, etc., R. R. Co., 17 Conn. 372; Stufflebeam v. Montgomery, 3 Idaho, 20, 26 Pac. 125.

In another line of cases special and peculiar damages have been found and allowed, as where the defendant obstructed a navigable creek over which plaintiff was then moving his goods in barges, whereby plaintiff was compelled to carry his goods overland at great expense (Roes v. Miles, 4 M. & S. 101); as where the plaintiff was actually detained four hours with three loaded asses (Greasly v. Codling, 2 Bing. 263); and as where the plaintiff was prevented from performing a contract which he had (Dudley v. Kennedy, 63 Me. 456). These were cases in which peculiar and special damages flowed proximately from the act complained of. The Massachusetts case from which we have quoted, and other cases of that character, on the other hand, are to be justified, as we think, upon the ground that the damages claimed were speculative, remote, and not capable of positive proof. And the ruling of the trial court in this case must be sustained, for the reason that, in so far as the complaint shows mere inconvenience in traveling to and fro the plaintiff suffered no injury different in degree and kind from that suffered by the general public. As for those damages which are claimed for the loss of business, and the employment of additional wagons, teams, and employes, and the building of a new road, they are speculative and remote. They amount to nothing more than a claim for the profits of the business which plaintiffs might have done, without these additional aids, but for the obstruction. They cannot be recovered.

If the complaint had set forth a valid claim for general or nominal damages, it would not have been laid open to demurrer by the addition of the special damages claimed, though the special damages were not recoverable. In that case defendants’ response to tbe improper elements of damage claimed should have been by motion to strike, objections to evidence, or by requests for instructions to the jury. — Treadwell v. Tillis, 108 Ala. 262, 18 South. 886. But the principles considered as determining the nature of plaintiff’s right in the premises lead to the conclusion that plaintiff could not maintain his suit as for nominal damages only. The gist of the action in cases of this class is the peculiar private injury, which must be alleged and proved.— Smith v. McDowell, 148 Ill. 51, 35 N. E. 141, 22 L. R. A. 393; Houck v. Wachter, supra. The entire claim being for peculiar damages, which are special also, and necessarily so, and no such recoverable damages being averred in the complaint, no room is left for presuming the existence of nominal or general damages from the mere wrongful act alleged. — Nichols v. Rasch, 138 Ala. 372, 35 South. 409. The demurrer was therefore well sustained.

Affirmed.

Dowdell, C. J., and Andekson and Mayfield, JJ., concur.