Farmers' Co-operative Mfg. Co. v. Albemarle & R.R.
| Decision Date | 15 October 1895 |
| Citation | 23 S.E. 43,117 N.C. 579 |
| Parties | FARMERS' CO-OPERATIVE MANUF'G CO. v. ALBEMARLE & R. R. CO. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Edgecombe county; McIver, Judge.
Action by the Farmers' Co-operative Manufacturing Company against the Albemarle & Raleigh Railroad Company for obstructing a navigable stream. From a judgment for plaintiff, defendant appeals. Reversed.
The passage of plaintiff's boat, engaged in transporting cotton seed to his factory, being obstructed by a bridge built across a navigable stream by defendant, plaintiff unloaded the seed, but, instead of procuring another conveyance, left it exposed, whereby it was injured. Held that the measure of damages was the value of the boat for the time it was delayed, including reasonable wages paid to the crew, but that no recovery could be had for injury to the seed from exposure, or for the cost of unloading it.
John L Bridgers, for appellant.
H. G Connor, for appellee.
The most interesting question presented by this appeal is whether the plaintiff, in any aspect of the evidence, has shown such special damage as would entitle him to redress by civil action for a public nuisance. The law provides an adequate remedy for the wrong to the public, and thereby prevents a multiplicity of vexatious private actions. But, in order to the maintenance of a civil action by an individual, in addition to the indictment by the state, it is not made incumbent on him to show an injury from which he is the sole or even a peculiar, sufferer. The damage recoverable in a civil action founded upon the obstruction of a public highway must, however, be such as is not common to every one who actually does pass or may travel over the highway. It must be unusual or extraordinary, but not necessarily singular. While the wrong must be special, as contradistinguished from a grievance common to the whole public, who have the right to use the highway, it may nevertheless be the common misfortune of a number, or even a class of persons, and give to each a right of redress. The amounts of damage recoverable by them may vary according to the extent of the loss shown in each case, but every one of them may maintain his status in court by alleging and proving precisely the same sort of wrong caused by the same obstruction. For instance, in the familiar case of the plaintiff who was injured by falling into a ditch dug by another across the public highway, referred to by the elementary writers and the courts to illustrate the principle upon which civil actions are maintainable in such cases, it would not have impaired the right of the first man who suffered from falling into it if a dozen of his neighbors had tumbled into it afterwards on the same day, and had received more serious injury than he. So in Downs v. City of High Point, 115 N.C. 182, 20 S.E. 385, where the municipality created a public nuisance by negligence in allowing a sewerage ditch to discharge its contents in a place where the nauseous smell annoyed the whole public, but gave to the plaintiff a right of action because of his sickness and that of members of his family, due solely to the disagreeable odors, it would have been none the less competent for him to claim the right to show special damage, or such as was not common to the whole public, because it appeared that other families in the vicinity and on all sides of the defective ditch had suffered in a similar way, and claimed like redress in the courts. Bishop, in his work on Noncontract Law (section 424), by way of illustrating the principle we are discussing, says: The first authority cited to sustain the author's view was Dudley v. Kennedy, 63 Me. 465, where the facts were that the plaintiff, who had engaged to transport rocks and gravel in boats on the Kennebec river, which is a navigable stream, was prevented from carrying out his contract by a boom placed across the river between the point at which the rock and gravel were procured and the point of delivery, and the court held that the defendant was liable in a civil action for special damage. Though few of them are so directly in point as the case just cited, there is no dearth of authorities in which the general principle, as we have formulated it, is so fully sustained as to make its application to the case at bar obvious and the deduction inevitable. Greasley v. Codling, 2 Bing. 263; Chichester v. Lethbridge, Willes, 70, 74; Hughes v. Heiser, 2 Am. Dec. 459, 463; Rose v. Miles, 4 Maule & S. 101; Burrows v. Pixley, 1 Am. Dec. 56.
It is not material whether this particular boat was licensed or whether other individuals owned boats that were engaged in navigating the river. If the plaintiff suffered damage common to a class whose business required the transportation of material for manufacturing purposes from a point below the obstruction to a point located above it, but not common to the whole public, his right is not impaired by the fact that the boat was doing business as a common carrier as well as for the...
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