102 Me. 47 | Me. | 1906
Erom the bill; answer and evidence we find the following facts: On the south side of Mt. Desert Island is a small cove of tide water called “ Gil patrick’s Cove.” The defendants have a warranty deed of a lot of upland on this cove at its head or extreme northern end, and also of so much of the shore or flats of the cove as is included within the extension of the side lines of their upland across the shore or flats so as to include the structures hereinafter described. The plaintiff owns a lot of upland bordering on the cove next south-west of the defendants’ upland, but, so far as appears in this case, she does not own any part of the shore or flats of the cove. (100 Maine,‘410.) The defendants, being in possession under a warranty deed, must therefore be held to have a prima facie title to the flats named in their deed, at least as against the plaintiff. The defendants’ grantor some twelve years ago erected on the land included in his deed to them a wharf extending from the upland out upon t'heir flats in front, and also erected upon this wharf a building for trading purposes. This wharf and building have be.en maintained ever since, and are now maintained by these defendants and are wholly upon their land. They are'now proposing to widen the wharf by an addition to its eastern side within the side lines of their flats and not extending any further out from the upland. The present wharf was erected and has ever since been maintained without
Tf the existing structures alone were the subject matter of this suit, the bill would need be dismissed under the settled doctrine of this court that it will not, except in extreme cases, exercise its equity powers to compel the removal of existing structures upon the land of the defendant though they may be a nuisance in law, but will leave the plaintiff to his remedy at law which in this state is “ plain, adequate and complete.” See the statute on nuisances, R. S., c. 22; Davis v. Weymouth, 80 Maine, 310; Tracy v. LeBlanc, 89 Maine, 304; Sterling v. Littlefield, 97 Maine, 479. In Prop. Maine Wharf v. Custom House Wharf, 85 Maine, 175, the structure was not on the defendant’s land and the rights had been settled at law. No such hurt or danger of hurt is shown by the evidence in this case as would take it out of that rule.
The bill would also need be dismissed under the general principle of equity jurisprudence that an equity court will not intervene where the plaintiff has long tolerated the alleged nuisance, but will leave him to establish his claim at law. These present structures had been tolerated for ten years, during all which time they were as much nuisance as now, having the same effect on persons and property at Gil patriek’s Cove. The danger of future hurt from them is no more imminent now than at first. After ten years the claim of the plaintiff for their removal is much too stale for the court to enforce by decrees in equity.
But (he claim of the plaintiff for an injunction against the proposed extension is cognizable in equity and hence requires consideration in this suit; and the already extensive and increasing occu
Such being the rights of the defendants and of the state in and over their flats, we proceed to consider what right the plaintiff may have to an injunction against the proposed extension of the defendants’
The mere fact that the structures are, or will be, erected and maintained without the required statutory license does not make them outlaws, to be lawfully assailed and destroyed by anyone, or abated at the private suit of any person. Brightman v. Bristol, 65 Maine, 426. Indeed the statute does not declare them to be a nuisance in law. An equity court will not at the suit of a private party restrain the erection of a building, not in fact a nuisance, merely because its erection is forbidden by statute or ordinance. St. John Village Corp. v. McFarlan, 33 Mich. 72; Mayor of Manchester v. Smith, 64 N. H. 380. Again, the mere fact that the existence of these structures upon the defendants’ flats do or will lessen the plaintiff’s enjoyment of her lot, even as a summer residence, and lessen its, commercial value, does not give her a right to an abatement or even to damages. A neighbor’s building on his own land, by its ugliness of architecture or by its mere proximity, may lessen one’s enjoyment of his own residence and lessen its market value; or a competing, neighboring factory may lessen one’s business profits and the value of his own factory, and yet no legal right be infringed. It is not enough, therefore, for the plaintiff to show that the structures on the defendants’ flats are there without the required statutory license and that they lessen the enjoyment and market value of her land. She must go further and show that they infringe some individual right recognized by the law as a legal, private right of hers. That they infringe the legal rights of others gives her no cause of action against them.
The present structures and the proposed extension are forbidden by statute, and to that extent are, and will be, illegal. Do they or will they infringe any individual legal right of the plaintiff? There is no evidence nor complaint that they do or threaten any injury to the plaintiff or her land by vitiating the air or water, by unhealthy or offensive odors, by disturbing noises, or by obstructing the passage of light or air, or by otherwise unfavorably affecting her health or physical comfort. The plaintiff practically advances but three propositions, viz: (1) that the structures are in law and in fact an obstruc
As to the first proposition, whatever the damage to. the plaintiff or her land, the right infringed, that of the unimpeded navigation of the cove, is a public right common to all the people of the state and not a right peculiar to owners and occupants of land bordering on the cove. It is the settled law of this state that structures which only infringe public rights can be dealt with only by the public, that is, by proceedings in the name of the state or some authorized person in behalf of the public. An individual affected has no separate right of action in his own name. To enforce the public right for his benefit he must set the public agencies in motion. It is only when the structures inflict upon him some special legal injury different in kind as well as degree from that suffered by others that he has an individual right of action against them. Holmes v. Corthell, 80 Maine, 33; Penley v. Auburn, 85 Maine, 281; Taylor v. P .K. & Y. St. Ry. Co., 91 Maine, 193.
The plaintiff contends, however, that boating privileges in and about the cove are attached to her lot, that these are a large and peculiar element in its market valúe and constitute a legal right appurtenant thereto apart from the public which has no right to make use of it to facilitate their use of their public right, and that the structures restrict and abridge these privileges. There may be appurtenant to her lot a right of passage by boats, &c., to and from it, Maine Wharf v. Custom House Wharf, 85 Maine, 175, but that is only the right of access to and departure from her land by water. Any other use of the water for boating or other navigation would be under the public right alone.
But the plaintiff further urges that, conceding the right violated to be a public right only, the violation of . that public right has damaged the value of her land, and that this damage is individual and peculiar, one not suffered by the public at large. The question,
Though by reason of her land being on this cove the plaintiff may have more need or occasion than other persons to make use of the public right to the unimpeded navigation of the cove, and her land may be more damaged by the violation of that right, the right itself is still public and not private. Her ownership of land on the cove gives her no greater nor different right to navigate it. Every other citizen has the same right in kind and degree. The plaintiff may have a greater interest than others in the right and a greater need of its enforcement, but that does not change the public right into a private right. Frost v. Wash. Co. R. R. Co., 96 Maine, 76. It may be that an individual actually obstructed by an unauthorized structure while in the actual exercise of the public right may maintain an action for damages resulting, as was held in Brown v. Watson, 47 Maine, 161; but that is a different case from this where the only complaint is of the unfavorable effect upon the enjoyment and value of the land.
The plaintiff further urges the hardship of her being left to the action of public officials to enforce the public right and relieve her from the damage done her by these unlicensed structures. She suggests that the officials, influenced by local, political, or other immaterial considerations, may improperly neglect and even refuse to act upon application and thus leave her helpless. Even if this apprehension be Avell founded, the court cannot afford relief in this suit. Her remedy against recalcitrant public officers is in some other procedure.
To the second proposition there are two answers. The law of this state does not recognize any legal right to an unobstructed view of scenery over and across the lands, even the flats, of others unless acquired by grant; nor does the law recognize as a cause of action the annoyance caused by the proximity or ugliness of otherAvise harmless structures upon the land of another. The pleasure of an unobstructed view and of a prospect free from unsightly objects may
Undoubtedly these structures do annoy the plaintiff and the occupants of her land, and do reduce its renting and selling value, but, so far at least, it appears to be a case of damnum absque injuria. It is clear, we think, that her first and second propositions do not, under our law, sustain her suit.
We come now to her third and last proposition, viz : that the structures in fact materially impede the passage by water to and from her land, and thereby infringe a legal right appurtenant to her
We find no ground upon which this suit can be maintained in equity, and hence the decree dismissing the bill must be affirmed; but since the plaintiff may possibly be able to establish in an action at law some infringement of her individual legal rights, such as the right of access, the decree of dismissal should be without prejudice to such an action. Since the wharf and the proposed extension are confessedly in violation of the statute requiring a license, we think the defendants should not recover costs of appeal.
Final decree to be made in accordance with this opinion.