Canton Cotton Warehouse Co. v. Potts

• Decision Date: 26 October 1891
• Court: Mississippi Supreme Court
• Parties: CANTON COTTON WAREHOUSE CO. v. ROSANNA POTTS

10 So. 448

69 Miss. 31

CANTON COTTON WAREHOUSE CO. v. ROSANNA POTTS

Supreme Court of Mississippi

October 26, 1891

FROM the chancery court of Madison county, HON. H. C. CONN Chancellor.

The facts are stated in the opinion.

Decree affirmed.

Robert Powell, for appellant.

Since it is claimed that the nuisance is permanent, the damages are capable of definite ascertainment, and the remedy at law is complete. 2 Black on Judgments, 743, 744.

The bill does not show that complainant suffers any injury different in kind from that sustained by the public. The difference is only in degree. Green v. Lake, 54 Miss. 540; 19 N.J.Eq. 278; 6 Am. Rep., 332; 34 Md. 265; 4 N.H. 520; 12 Conn. 128; 13 Barb. 209; 7 Metc., 276; 1 Am. L Reg., 60; 13 Ib., 60; 8 Ib., 252; 20 Nev. 429; 100 Mo. 508.

W. H Powell, on the same side.

If the nuisance is a public nuisance, only the public can ask for its abatement. A private person must show that he sustains damages different in kind from that suffered by the public. The bill fails to show this. Smith v. Gill, 52 Miss 607; 16 Am. & Eng. Ency. L., 982.

When the complaint is that the plaintiff has been injured in respect to a right to enjoy in common with others a public easement or privilege, it is necessary to show (1) that the public easement or privilege exists; and (2) that he has been hindered or obstructed in the common right to enjoy it. To show both is necessary, because the public wrong must be redressed at the suit of the state, and not of the individual. The fact that a public wrong is suffered creates no presumption of individual injury. Cooley on Torts, 732.

An abutting owner cannot maintain an action for a nuisance caused by obstruction of the street without showing special damage. Hogan v. Railroad Co., 71 Cal. 83.

Besides, to warrant this action, a nuisance must be established as existing by law, and the injury must be irreparable. The fact that plaintiffs lodgers have to take a more circuitous route and suffer some inconvenience is not an element of special damages. 9 Am. L. Reg. (N. S.), 454; 11 Ib., 60; 61 Mo. 515; 91 Ind. 64; 92 Ib., 225; 19 Hun., 272.

Here the damage, if any, is permanent. It affects the value of plaintiff's property permanently, and, as the defendant is solvent, a recovery for the entire damage may be had at law. 5 Am. & Eng. Ency. L., 20.

E. E. Baldwin, for appellee.

Where a private citizen is specially injured by the obstruction of a highway, he may maintain a suit in equity for damages and to enjoin the nuisance.

The test of jurisdiction is this: (1) Is the damage complained of special and peculiar to the individual property owner, and different from and over and above that done to the public; and (2) is the damage continuous. Elliott on Roads & Streets, 596-599; Wood on Nuisance, §§ 770-785.

OPINION

COOPER, J.

The appellee is the owner of a lot in the town of Canton, situated in a square bounded on the east by the Illinois Central Railway, on the south by Peace street, and on the north by Franklin street. Her lot extends through the square from Peace to Franklin street. Her residence fronts on Peace street, and in it she conducted the business of keeping boarders, who were servants of the adjacent railway, and resorted to her house because of its nearness to their place of business. On that part of the lot fronting on Franklin street she has a cottage, the furnished rooms of which she rented to her boarders and others. The defendant owned the lot east of the lot of the plaintiff, in the same square, and also a lot north of Franklin street and north of the lot lying in the same square with the lot of complainant. The defendant, for the prosecution of its business, has erected certain buildings on its property, and also upon that portion of Franklin street by which its lots are separated, closing up the eastern end of Franklin street, which is the point towards the railroad and the business portion of the town. Complainant's lot fronting on Franklin street is thus placed in a cul de sac--closed at the end through which those who patronized her furnished rooms were accustomed to approach them.

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