Davis v. County Com'rs of Hampshire County

• Decision Date: 24 February 1891
• Citation: 26 N.E. 848,153 Mass. 218
• Parties: DAVIS et al. v. COUNTY COMMISSIONERS OF HAMPSHIRE COUNTY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

153 Mass. 218

26 N.E. 848

DAVIS et al. v. COUNTY COMMISSIONERS OF HAMPSHIRE COUNTY.

Supreme Judicial Court of Massachusetts, Hampshire.

February 24, 1891

COUNSEL

J.C Hammond and Henry P. Field, for New York, New Haven & Hartford Railroad Company.

Wells McClench & Barnes, for petitioners.

OPINION

C. ALLEN, J.

The New York, New Haven & Hartford Railroad Company, having been allowed to take part in the argument in support of the order of the county commissioners, contends that the petitioners have no such standing or interest in the matter in controversy as to entitle them to be heard in court. The petitioners aver that their lands are situated upon that part of South street which will be discontinued if the order of the commissioners is legal, and is carried into effect, and that they would be entitled to recover damages therefor. There was, however, no order which in terms discontinued any part of South street, and their order will not have the effect, by implication, to discontinue any part of the street, except such as is necessarily discontinued by the giving up of the crossing. The order that an alteration be made in the crossing, so that it shall not be at grade, necessarily implies a discontinuance of so much of the street as is within the location of the railroad; and there is nothing to show an intention to discontinue anything further. The petitioners, indeed, do not, in their brief, contend that the street is discontinued opposite to their lands, but only that their lands before the change were upon a thoroughfare, and, if the contemplated change is made, will be upon a cul de sac. A reference to the plan shows that their lands are upon the southside of Mill river, while the crossing which the commissioners have ordered to be discontinued is upon the north side, and the discontinuance will cut off the direct route from these lands in a northerly direction to the principal business streets of Northampton, and make it necessary to resort to a circuitous route through other streets. The petitioners aver that their real estate will be seriously and permanently injured by the carrying out of the order, and the justice before whom the case was heard has found this averment to be proved. The injury results from cutting off the direct approach to their lands by the public street in one direction. Is this such an injury as gives them a standing to be heard individually on a petition for a writ of certiorari?

The general doctrine is familiar that ordinarily one cannot maintain a private action for a loss or damage which he suffers in common with the rest of the community, even though his loss may be greater in degree. A difficulty sometimes arises, however, in applying this doctrine to a particular case. In Smith v. Boston, 7 Cush. 254, it was held that the discontinuance of part of a street in a city, whereby the value of lands abutting on other parts of the street is lessened, is not a ground of action against the city by the owner of such lands, if the same are still accessible by other public streets. The court says: "The inconvenience of the petitioner is experienced by him in common with all the rest of the members of the community. He may feel it more, in consequence of the proximity of his lots and buildings; still it is a damage of the like kind, and not in its nature peculiar or specific. *** The petitioner has free access to all his lots by public streets. The burden of his complaint, therefore, is that in going to some of his houses, in some directions, he may be obliged to go somewhat further than he otherwise would. So must the inhabitant of the south end of the city, or the citizens of other towns, and their teams or carriages, who would have had a right to use the discontinued way." The court, however, takes pains to say that, if all access to an estate by public streets is cut off, the rule might not apply, and that in such case the owner might perhaps have a claim for damages; and this has been expressly decided in Minnesota. Brakken v. Railroad Co., 29 Minn. 41, 11 N.W. 124. The doctrine of Smith v. Boston was expressly reaffirmed in Castle v. Berkshire, 11 Gray, 26. In Williard v. Cambridge, 3 Allen, 574, a demurrer was sustained to a declaration which alleged that the city of Cambridge had taken up the planks of a draw-bridge forming a part of a public highway, and thereby obstructed the travel to the plaintiff's wharf, and rendered less desirable his houses occupied by tenants, so that he was obliged to abate from his rents. The court says: "Every person owning property on the highway leading to the bridge sustained a similar injury;" and the case of Stetson v. Faxon, 19 Pick. 147, is distinguished by the fact that there the nuisance causing the obstruction to the plaintiff's premises was erected directly against and abutting on the estate of the plaintiff, and diverted travel therefrom. Williams v. Tripp, 11 R.I. 447, much resembles Stetson v. Faxon. The same principle has also been applied in cases of obstructing navigable waters. In Brightman v. Fairhaven, 7 Gray, 271, the plaintiff's land, situated upon a navigable stream, was injured by the construction of a dam across the stream in such a manner as to obstruct the floating up of spars; and it was held that he could not maintain an action therefor. Clark v. Saybrook, 21 Conn. 313, is substantially like Brightman v. Fairhaven. In Harvard College v. Stearns, 15 Gray, 1, it was held that the owner of a wharf cannot maintain an action for illegally filling up a navigable creek, whereby the wharf was rendered more difficult of access and less valuable. In Blackwell v. Railroad, 122 Mass. 1, it was determined that no action lies to recover damages for the obstruction of a navigable stream by building a bridge across it, whereby the owner of a wharf situated above the bridge was cut off from approaching the wharf in vessels, and its value was thereby lessened, although his wharf was the only one above the bridge used for business purposes. In Brayton v. Fall River, 113 Mass. 218, it was held that the owner of a wharf upon a tide-water creek could not maintain an action for an illegal obstruction to the navigation of the creek whereby his wharf was rendered less valuable, this being an injury of the same kind sustained by all other persons who had occasion to use the creek, or who owned land bordering upon it; but that he might maintain an action for an obstruction directly in front of and adjoining his wharf which prevented vessels from lying at it in the accustomed manner, this being deemed a special and peculiar damage to him. This same distinction was also observed in Garitee v. Mayor, etc., of Baltimore, 53 Md. 422, and in French v. Lumber Co., 145 Mass. 261, 14 N.E. 113. So, in England, where the plaintiff's premises were separated from a public dock in the Thames only by a highway, and the dock was destroyed by the erection of the Thames embankment, so that the plaintiff was cut off from access from his premises to the river, he was held entitled to damages for the same reason. Board v. McCarthy, L.R. 7 H.L. 243, L.R. 8 C.P. 191, L.R. 7 C.P. 508.

Without dwelling upon other decided cases in Massachusetts or elsewhere, we are of opinion that the petitioners would not be entitled to recover damages for the diminished value of their lands, that being a loss not peculiar to themselves, but the same in kind as that...