Aldrich v. Wetmore
| Decision Date | 10 January 1893 |
| Parties | Alfred D. Aldrich v. Theodore Wetmore et al |
| Court | Minnesota Supreme Court |
Argued December 19, 1892
Appeal by defendant Theodore Wetmore from an order of the District Court of Hennepin County, Pond, J., made July 25, 1892 granting plaintiff's motion for a new trial.
The plaintiff, Alfred D. Aldrich, for a first cause of action stated that he had for three years carried on the business of a barber on the ground floor at No. 105 Second Street South in Minneapolis, and lived with his family in the second story. That defendant owned the adjoining lot on the south and on May 5, 1891, took up the sidewalk in front of it, and excavated a cellar on his lot and under the sidewalk, and deposited the earth in the street in front of both his lot and plaintiff's shop, whereby the sidewalk and street were obstructed, travel prevented, and the surface water collected and detained in front of plaintiff's shop and in the excavation. That on this account plaintiff lost many of his customers, and the value of his business was impaired.
For a second cause of action plaintiff stated that by this excavation on Wetmore's lot, an old privy vault and cess-pool were uncovered and exposed. That noxious and offensive exhalations have since arisen therefrom and pervaded his premises and the vicinity, and prevented his customers from coming there, and have seriously interfered with the comfortable enjoyment of his shop and residence. He demanded judgment against Wetmore for $ 2,000 damages. Wetmore answered that he procured a permit to build a brick store on his lot, and made a contract with Seymour & Hart to excavate the cellar and build the stone wall; that they did the work as speedily as was practicable, and restored the sidewalk within two weeks. He denied that he left earth in the street, and also denied all the other allegations of the complaint.
The issues were tried May 3, 1892. It was shown that the work was suspended before the cellar wall was completed, and had never been resumed, that the water from the street gutter ran into it, and that the sidewalk as restored was a gangway of loose plank. Plaintiff admitted on the trial that access to his building was not totally cut off; that it was not interfered with in the opposite direction up the street to the north whereupon the court held he had no cause of action on the first count and excluded all proof thereof. Plaintiff excepted. On the other count the jury returned a verdict for the defendant. Plaintiff moved the court for a new trial for errors of law occurring at the trial and excepted to by him and for misconduct of the jury. He supported the motion with affidavits of residents of the vicinity, stating that they saw three of the jurors examining the excavation and premises one evening during the trial. Defendant produced the affidavit of the jurors, that after court adjourned for the day, they went by the excavation and looked down into it, but did not go into it, and were not there over three minutes; that what they saw in no way influenced them in arriving at their verdict, and that they did not mention their visit to the other jurors; that the verdict was based exclusively upon the evidence presented in court. See Woodbury v. City of Anoka, post, p. 329.
The court granted a new trial of both causes of action, and defendant appeals.
Order affirmed.
Cobb & Wheelwright, for appellant.
The complaint did not allege or show that access to plaintiff's premises had been cut off, by the alleged obstructions, or that plaintiff's damages were different in kind from those sustained by the rest of the public in general. It was conceded in open court that access to plaintiff's premises had not been cut off by the alleged obstructions. A plaintiff who seeks to recover damages for obstruction to a public street must show as a condition precedent, that access to his premises has been cut off by the obstruction complained of. Lakkie v. Chicago, St. P., M. & O. Ry. Co., 44 Minn. 438; Shaubut v. St. Paul & Sioux City R. Co., 21 Minn. 502; Rochette v. Chicago, M. & St. P. Ry. Co., 32 Minn. 201; Barnum v. Minnesota Transfer Ry. Co., 33 Minn. 365; Swanson v. Mississippi & R. R. Boom Co., 42 Minn. 532; Brakken v. Minneapolis & St. L. Ry. Co., 29 Minn. 41; Thelan v. Farmer, 36 Minn. 225; Adams v. Chicago, B. & N. R. Co., 39 Minn. 286.
The alleged misconduct of the three jurors was brought to the attention of the court on the motion for a new trial by affidavits, which were clearly insufficient to warrant the court in granting a new trial, as it does not affirmatively appear therefrom that any prejudice resulted to plaintiff by reason of the alleged acts of the jurors. It does not appear that they visited the locus in quo at the suggestion or through any influence of the defendant. It does not appear that the jurors talked among themselves, or with any other person at the time of their visit or at any other time, concerning the nuisance. If there is a presumption that prejudice resulted, such presumption is overcome by the affidavits of the jurors to the contrary. Ortman v. Union Pacific R. Co., 32 Kan. 419; Hayward v. Knapp, 22 Minn. 5; Thompson, Trials, § 2611.
Charles L. Smith, for respondent.
This nuisance was only a private one. It was not a public nuisance, although it may have injured a great many persons. The injury was to individual property. King v. Morris & Essex R. Co., 18 N.J.Eq. 397; Francis v. Schoellkopf, 53 N.Y. 152; Wylie v. Elwood, 34 Ill.App. 244; 16 Amer. & Eng. Encycl. of Law, 926; Sedgwick, Damages, § 35.
While total obstruction of the street is an injury to the private rights of the individual, still a partial obstruction, when it interferes with the rights of property and turns away customers from an established business, is an injury to the private rights of the individual, and he may maintain an action against the wrongdoer. Callanan v. Gilman, 107 N.Y. 360; Stetson v. Faxon, 19 Pick. 147; Flynn v. Taylor, 53 Hun 167; Pennsylvania v. Wheeling & B. Bridge Co., 13 How. 518; Platt & Speith v. Chicago, B. & Q. R. Co., 74 Iowa 127; Rose v. Groves, 5 Man. & G. 613; Simmer v. City of St. Paul, 23 Minn. 408; Goebel v. Hough, 26 Minn. 252; Ofstie v. Kelly, 33 Minn. 440.
The granting of a new trial for the misconduct of the jury is in the sound discretion of the trial court, and it requires a clear case against its action, to justify this court in reversing the decision of such court. Hewitt v. Pioneer Press Co., 23 Minn. 178; Koehler v. Cleary, 23 Minn. 325.
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 St. Paul & Sioux City Ry. 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...
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