Willard v. City of Cambridge

85 Mass. 574 | Mass. | 1862

Bigelow, C. J.

We cannot distinguish this case from those in which it has been determined by this court that no action at law can be maintained to recover damages for the obstruction of a highway, unless a party can prove that he has sustained some special and peculiar damage thereby, different in kind, and not merely in degree, from that which is occasioned to other persons by the alleged nuisance. Quincy Canal v. Newcomb, 7 Met. 276. Brainard v. Connecticut River Railroad, 7 Cush. 511. Blood v. Nashua & Lowell Railroad, 2 Gray, 140. Brightman v. Fairhaven, 7 Gray, 271 Harvard College v. Stearns, 15 Gray, . Hartshorn v. South Reading, ante, 504. No doubt the annoyance and injury to the plaintiff by the acts . alleged in the declaration were much greater in amount than those which were caused to any other person having occasion to use the same highway. But it was a similar sort or species of damage. His near proximity to the bridge and the nature of the business in which he was engaged did not change the kind of damage to which he was subjected, but only increased the extent of the injury. Every traveller having occasion to pass the bridge or to transport goods or merchandise across it incurred in some degree additional trouble and expense, as well as loss of time, by being compelled to seek another and more circuitous route. These elements of damage are the same as those claimed by the plaintiff, and are not special or peculiar to him so as to furnish a good cause of action. The same is true of the alleged loss of rents. Every person owning property on the highway leading to the bridge, near to or remote from the place of the alleged obstruction, sustained a similar injury. Smith v. Boston, 7 Cush. 257. The ease of Stetson v. Faxon, 19 Pick. 147, is distinguishable from the case at bar by the leading fact that there the nuisance causing the obstruction to the plaintiff’s premises was erected directly against and abutting on the estate of the plaintiff, and diverted travel therefrom, and it did not appear that any other person sustained a similar injury.

Demurrer sustained.