Aldrich v. City of Minneapolis

• Decision Date: 10 January 1893
• Citation: 53 N.W. 1072,52 Minn. 164
• Parties: ALDRICH v CITY OF MINNEAPOLIS ET AL.
• Court: Minnesota Supreme Court

52 Minn. 164

53 N.W. 1072

ALDRICHvCITY OF MINNEAPOLIS ET AL.

Supreme Court of Minnesota.

Jan. 10, 1893.

(Syllabus by the Court.)

1. To entitle a party to maintain a private action for obstructing a public street, it is not necessary that the obstruction should cut off all access to his property.

2. Former decisions of this court reviewed and explained.

3. It is the nature of the right affected, and not the number who suffer, which determines whether a private action will lie for creating or maintaining a public nuisance.

4. Hence, if an obstruction in a street merely interferes with a person's traveling on the street,-a public right, enjoyed in common with people generally,-no private action will lie; but, if he has property or business in the vicinity of the obstruction which is injured by reason of the interruption of convenient access to it, the right interfered with is a private property right, and he may maintain his action for damages.

5. Held, also, that a new trial was properly granted, on the ground of misconduct of jurors in making independent investigations out of court in respect to matters in suit.

Appeal from district court, Hennepin county; POND, Judge.

Action by Alfred D. Aldrich against the city of Minneapolis and others. Defendants had judgment, and from an order granting a new trial, defendant Theodore Wetmore appeals. Affirmed.

Cobb & Wheelwright, for appellant.

Chas. L. Smith, for respondent.

MITCHELL, J.

The complaint in this action set up two causes of action, each for damages to plaintiff's property and business by the wrongful act of the defendants in committing and maintaining a nuisance; the nuisance alleged in the first being the obstruction of a public street, and that alleged in the second being the maintenance, on an adjoining lot, of a vault or cesspool, which emitted noxious and offensive smells. The court excluded all evidence as to the first, on the ground that the complaint did not state facts constituting a cause of action. The case went to trial on the second, and resulted in a verdict for the defendants. The court granted a new trial of both,-of the first on the ground that he had erred in holding that the complaint did not state a cause of action, and of the second on the ground of misconduct of some of the jurors. Taken in connection with an admission made on the trial, and which had the effect of an amendment of the complaint, the allegations as to the first cause of action are, in substance, that the plaintiff owned a building abutting on a public street, the ground floor of which he occupied as a barber shop, in which he had built up a large and profitable business, having a large number of customers who patronized his shop, their means of access thereto being the street referred to; that the defendant, who owned the lot adjoining on the south, unlawfully entered upon this street, and tore up the sidewalk in front of his own lot, and excavated the earth where the sidewalk had been, and also from his own lot, and deposited the earth in the street in front of plaintiff's premises, as well as his own, whereby the street and sidewalk in front of both became impassable, and the approach to plaintiff's building entirely obstructed and cut off, except by means of the sidewalk from the north; that these obstructions have ever since continued; and that, solely by reason thereof, plaintiff's customers could not safely or conveniently reach his shop, and consequently have ceased to resort there; and that thereby the value and good will of plaintiff's business have been wholly lost and destroyed. The ground upon which the court below held, and the ground upon which it is claimed here, that this did not constitute a cause of action, is that the damage alleged was not special or peculiar to the plaintiff, but the same in kind as that sustained generally by the public by reason of the obstruction of the public highway.

The contention of defendants' counsel is that the doctrine of this court is that no private action will lie for an obstruction of a public street unless the plaintiff's access to his property has been entirely cut off. In this the learned counsel is in error. Certainly, we never intended to announce any such doctrine. The parent case in the line of decisions on that subject is Shaubut v. Railway Co., 21 Minn. 502. An examination of the statement of facts in that case, in connection with the diagram attached, will show that the plaintiff proved no special or peculiar damage to his property or business, but merely that the obstruction interfered with his right to use a public highway, a right which he had in common with the rest of the public. The fact that the obstruction did not cut off access to his land was referred to, not as implying that that was necessarily essential to a cause of action, but as one fact, among others, showing that no special or peculiar damage was proved; the fact that all access is cut off by the obstruction being, in and of itself, special damage, which will entitle a party to maintain a private action; for, as is said in Brakken v. Railway Co., 29 Minn. 41,11 N. W. Rep. 124, “it may not be very important to the general public whether they shall be able to get to the private property of an individual, but it is important to the individual whether he should be able to get to and from his residence or business, and whether the public have the means of getting there for social or business purposes. If there be an obstruction in the street in front of or near his abutting property, so as to prevent access to it, the damage which he sustains is different, not merely in degree, but in kind, from that experienced in common with other citizens.” Rochette v. Railway Co., 32 Minn. 201,20 N. W. Rep. 140, and Barnum v. Transfer Ry. Co., 83 Minn. 365, 23 N. W. Rep. 538, merely follow the Shaubut Case, and the fact, among others, that it was not alleged that access to the property was cut off was mentioned for the same purpose, viz. to show that the complaints did not allege any special damage. Shero v. Carey, 35 Minn. 423,29 N. W. Rep. 58, and Thelan v. Farmer, 36 Minn. 225,30 N. W. Rep. 670, both went off on the point that the complaints did not contain any sufficient averments of special damage; the latter case holding that the character of the injury must be particularly alleged, so that the court may determine whether it...