Clark v. Chi. & N. W. Ry. Co.

• Decision Date: 31 January 1888
• Citation: 36 N.W. 326,70 Wis. 593
• Court: Wisconsin Supreme Court
• Parties: CLARK v. CHICAGO & N. W. RY. CO.

70 Wis. 593

36 N.W. 326

CLARK

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

January 31, 1888.

Appeal from circuit court, Winnebago county.

This action was brought by Charles B. Clark, to recover damages suffered by the plaintiff by reason of an alleged nuisance maintained by the defendant company, and for the abatement of such nuisance. The case is here on an appeal by the plaintiff from an order sustaining a general demurrer to the complaint. It is alleged in the complaint that the defendant erected, and for the last six years has maintained, a railroad bridge in the city of Menasha, across the natural channel and bed of Fox river, (which is a navigable stream,) thereby entirely obstructing and preventing the navigation of the river; that there is a large amount of freight to be carried between the cities of Neenah and Appleton, in this state, and other points below the bridge, on the river, which would naturally be carried on boats by way of the river were not the passage thereof prevented by the bridge; and that the plaintiff is a citizen of, and a freeholder in, this state, and a resident of the city of Neenah. It is then alleged in the complaint as follows: “ Seventh. That this plaintiff is compelled, in the prosecution of his business, to pass almost daily from the city of Neenah to the city of Appleton. That during the season of navigation upon said Fox river, which commences about the first of April, and closes about the middle of November, in each year, this plaintiff would pass by steam-boat between Neenah and Appleton, by way of said river, if said river were not obstructed by the bridge of defendant, before mentioned. That this plaintiff is the owner of a steam passenger boat, or steam-yacht, named ‘Theresa,’ by which he would pass almost daily from Neenah to Appleton, carrying himself and other passengers from the city of Neenah to the city of Appleton, and from the city of Appleton to the city of Neenah, if he were not prevented from so passing by the said bridge of the defendant. That by and on account of said bridge, this plaintiff is prevented from going himself in his said steamboat, and carrying other passengers from the city of Neenah by way of said river to the city of Appleton, unless the plaintiff goes out of his way, and by a circuitous route, by which the distance from the city of Neenah to the city of Appleton is increased about four miles, and by which route this plaintiff is delayed in the passage by passing a lock in the government canal. Eighth. That this plaintiff, in carrying on his business as a manufacturer, is largely interested in the carrying of freight up and down the Fox river, which freight would pass the said river at the point where said bridge is built, if the river were not obstructed by said bridge; but which freight, on account of the obstruction of said bridge, has to be carried about four miles further than it otherwise would be carried, or it has to be carried by railroad at a much greater expense than it otherwise would be carried by water.” The refusal of the defendant to remove the bridge, as requested, and the plaintiff's damages, are alleged. Judgment is demanded for the abatement of the nuisance, and for such damages.Moses Hooper, for appellant.

Jenkins, Winkler & Smith, for respondent.

LYON, J., ( after stating the facts as above.)

One who sustains special damage peculiar to himself, either in person or in property, from a public nuisance, whether such damage be direct or consequential, may recover the same of the person or corporation creating or maintaining such nuisance. But it is essential to a recovery in such case that the plaintiff prove the damages are special to himself; that is, that they result from an injury of a different character from the injury suffered by the rest of the public, and not a part of the common injury caused by the nuisance. “It is not enough,” says Mr. Wood, in his treatise on Nuisance, “that he has sustained more damage than another; it must be of a different character, special and apart from that which the public in general sustains, and not such as is common to every person who exercises the right that is injured.” The above proposition is well-settled law. See Wood, Nuis. § 646, and cases cited in notes. It is sometimes difficult to determine, under the above rule, whether an alleged injury to an individual, caused by a common nuisance, is or is not of a kind that gives him a private action to recover damages therefor. To aid in determining that question, other rules have been laid down by the courts and text writers, one of which is that a distinction must be made between actual present damages, and those which rest in contemplation. While, in a proper case, the former may be recovered in a private action, the latter cannot. Wood, Nuis. § 659. A man may desire to do any given thing, and may be able to show that he would have saved a certain sum of money could he have performed the desired act. In one sense he has suffered damage because of such inability. This, however, is purely contemplative damage. But when he endeavors to do an act and fails, and suffers loss thereby, this may be actual, present damage, within the above rule. Under this rule, a mere obstruction to a highway on which a person desires to travel, but who makes no attempt to do so, although it exposes him to inconvenience and loss, is not ground for a private action for damages. Such damages rest in contemplation, within the meaning of the rule.

It is believed that every case in this court in which private actions for damages resulting from common nuisances, or for injunctions to restrain their erection, have been sustained, comes fairly within the rule first above stated, and that none of them trench upon the rule last stated; that is to say, in each case actual, present damages, special and peculiar to the plaintiff, were proved. Thus the alleged nuisance in Walker v. Shepardson, 2 Wis. 384, greatly impaired the value and lawful use by the complainant of his wharf. In Barnes v. Racine, 4 Wis. 454, it interfered with the convenient use of the plaintiff's lots, wharfs, ship-yards, and mills, and impaired their value. In Williams v. Smith, 22 Wis, 594, it cut off (or would have done so) the only way of access to the premises of plaintiffs. In Enos v. Hamilton, 27 Wis. 256, it shut off access to plaintiff's mill, and deprived him of the use thereof, and prevented him from seasonably stocking it for future work. In Improvement Co. v. Lyons, 30 Wis. 61, it caused a loss to the plaintiff of $600 in tolls. In Green v. Nunnemacher, ...