Atwood v. Partree

• Decision Date: 15 July 1887
• Citation: 14 A. 85,56 Conn. 80
• Court: Connecticut Supreme Court
• Parties: ATWOOD v. PARTREE et al.

14 A. 85

56 Conn. 80

ATWOOD

v. PARTREE et al.

Supreme Court of Errors of Connecticut.

July 15, 1887.

Appeal from district court of Waterbury; BRADSTREET, Judge.

Action by Walter H. Atwood to compel Frederick J. Partree and others, selectmen of the town of Watertown, to remove the fences, and open an old highway. Judgment for defendants. Plaintiff appealed.

W. Cothren, for appellant. G. E. Terry, for appellees.

PARK, C. J. An application for a mandamus cannot be sustained by a private person, in his own name, against public officers, for the abatement of a public nuisance, unless he is specially and peculiarly injured by the nuisance over and above and independent of the injury he receives as a member of the public. Public injuries must be redressed by public officers; but private injuries, occasioned by public nuisances, may be redressed if the parties are thus specially and peculiarly injured. Wheeler v. Bedford, 54 Conn. 244, 7 Atl. Rep. 22. This action was brought to compel the selectmen of Watertown to remove the fences and open an old road a little northerly of the house of Joseph W. Atwood in that town, and running westerly to the town line. The old road had been practically abandoned for several years, and had been fenced in by the adjoining proprietor. The case finds that the plaintiff was the owner and possessor of a certain farm adjoining the old road, which road "furnished the only possible way for the plaintiff to reach his farm with loaded wagons or carts, and for many purposes incident to the working of the farm." The finding is that "no other person was so situated. The plaintiff had a special interest in the use of the old highway, which was over and beyond that of all other persons, and separate and distinct from theirs, and that of the public at large; and the obstructions in the highway were a serious injury to the plaintiff's private rights." But the injury here described cannot be called in any sense special or peculiar, or be said to differ at all in character from that which every member of the public experienced who had occasion to travel this road. The right which every man exercises who travels the highway for highway purposes is a public right. It is common to all; and, although the business of one man may be far more urgent than that of another,—his time may be far more valuable, and consequently far more injury may result to him from a delay on the road occasioned by obstructions to public travel,—still the character of the injury would seem to be the same in both cases, differing only in...