Dryden v. Purdy

• Decision Date: 08 January 1916
• Docket Number: 19,819
• Citation: 154 P. 221,97 Kan. 59
• Parties: H. C. DRYDEN, Appellee, v. J. N. PURDY, Appellant, and THE CITY OF CHANUTE
• Court: Kansas Supreme Court

154 P. 221

97 Kan. 59

H. C. DRYDEN, Appellee, v. J. N. PURDY, Appellant, and THE CITY OF CHANUTE

No. 19,819

Supreme Court of Kansas

January 8, 1916

Decided, January, 1916.

Appeal from Neosho district court; JAMES W. FINLEY, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

PRIVATE NUISANCE--Evidence--No Damage Peculiar to Plaintiff Shown. Plaintiff sought to enjoin as a private nuisance the keeping of wagons, buggies and covered cabs in front of a livery stable which adjoined his residence on the ground that the view from his front porch was thereby obstructed. Held, he failed to show that he suffered special damage or inconvenience different in kind from that of the public, and the action can not be maintained.

A. S. Lapham, and John W. Lapham, both of Chanute, for the appellant.

T. F. Morrison, of Chanute, for the appellee.

OPINION

PORTER, J.:

In an action to abate a private nuisance the petition alleged that defendant maintained a livery stable in the city of Chanute adjoining plaintiff's residence. The nuisance complained of consisted in leaving buggies, covered cabs and drays in front of the stable, thereby shutting off plaintiff's view of Main street. The court held that plaintiff could maintain the action, that obstructing the view of Main street from plaintiff's residence created an annoyance and inconvenience to plaintiff not suffered by the general public. The relief asked was granted and the defendant appeals.

The only question for determination, which was raised by a demurrer to the petition and to the evidence, is whether the plaintiff showed some special damage or inconvenience suffered by him beyond that suffered by the general public.

The general rule is that individuals are not entitled to redress against a public nuisance except by express statutory authority, and in determining what constitutes a private nuisance the rule is well established that the individual must show some damage, inconvenience, or annoyance peculiar to himself and different from that suffered by the public. There has been, however, much conflict and "some vacillation in judicial opinion as to what injuries were special within the meaning of this rule." (Mehrhof v. Del., L. & W. R. R. Co., 51 N.J.L 56, 57, 16 A. 12.) This court has quite uniformly held that it is not enough for the individual to show that he suffers to a greater extent than the public if it appears that the injury or damage is of the same nature. An obstruction in a highway which interferes more or less with the public travel but which deprives a landowner of access to and egress from his property has been held to constitute a private nuisance which the individual may enjoin. (Venard v. Cross, 8 Kan. 248, 255.) Cases will be found, also, which hold that where the individual shows that he sustains the same injury but to a greater extent than the public at large he has established the right to redress the wrong because his injury in such case is necessarily special and peculiar to himself. (Carver v. San Pedro, L. A. & S. L. R. Co., 151 F. 334...