Fogg v. Nevada C.O. Ry. Co.

• Court: Nevada Supreme Court
• Writing for the Court: HAWLEY, C.J.
• Citation: Fogg v. Nevada C.O. Ry. Co., 20 Nev. 429, 23 P. 840 (Nev. 1890)
• Decision Date: 31 January 1890
• Docket Number: 1,312.
• Parties: FOGG et al. v. NEVADA C. O. RY. CO. et al.

23 P. 840

20 Nev. 429

FOGG et al. v. NEVADA C. O. RY. CO. et al.

No. 1,312.

Supreme Court of Nevada

January 31, 1890

Appeal from district court, Washoe county; R. R. BIGELOW, Judge.

Action to restrain a nuisance brought by Fogg, Brookins, and Petersom against the Nevada-California-Oregon Railway et al. Judgment for defendants, and plaintiffs appeal.

Leonard & Lindsay, for appellants.

S. D King, for appellees.

HAWLEY C.J.

Action to restrain a nuisance. Demurrers to the complaint were interposed upon the grounds (1) that the complaint does not state facts sufficient to constitute a cause of action; (2) that there is a misjoinder of parties plaintiff; (3) that there is a misjoinder of causes of action. The demurrers were sustained, and judgment by default entered in favor of defendants for their costs. Plaintiffs appeal.

The complaint alleges that plaintiffs, Fogg, Brookins, and Peterson, are the separate owners of three certain town lots in Reno; that each of said plaintiffs has a dwelling-house upon his lot, in which he resides with his family consisting, among others, of children of tender years; that said premises abut and front on East street, which runs at right angles to Third and Fourth streets, --all public streets in the town of Reno; that Brookins' lot abuts and fronts for 100 feet on the west side of East street; that Fogg's and Peterson's lots each abut and front for 50 feet on the east side of East street; that East street extends from Fourth street on the north, to Third street on the south, a distance of 400 feet; that East street throughout its entire length, is of the uniform width of 80 feet; that since January, 1886, the "defendants, acting in concert, without authority of law, have wrongfully and unlawfully maintained, and do so now maintain, a steam railroad and railroad track of the width of three feet and four inches, in, over, and upon said East street, from the line of said Fourth street towards Third street, a distance of about 200 feet, and over and upon the aforesaid premises of plaintiffs;" that in May, 1889, the defendants in the same manner built and constructed over and upon the premises of plaintiffs, on East street, a branch track of same width, "from a point about 35 feet south of said Fourth street, southerly, in and upon said East street, a distance of about 235 feet;" that said tracks and railroad are a part of the general system of railroad communication for the carriage of freight and passengers between Reno and the state of California; that the main track, as constructed on East street, runs in the center of said street from Fourth street on the north, a distance of 75 feet, at which point said track bifurcates, one line running south-westerly, over and along East street, leaving it in a westerly direction at a point 170 feet south of Fourth street; the other running in a south-easterly direction, leaving East street on the east side thereof, at a point about 275 feet south of Fourth street, and north of Third street; that said tracks are laid on wooden ties imbedded in the soil, and are raised a height of from six to eight inches above the general level of the street; that said tracks and railroad so constructed and operated "are an existing, continuing, and constantly recurring common nuisance and obstruction in said East street;" that by reason thereof each of said plaintiffs has sustained special damages, and is obstructed "in the free and lawful use of his said premises, and the comfortable enjoyment of his life, and his said property is seriously interfered with;" that defendants, at divers times in the day and night, run their trains, "rendering passage on said East street for vehicles and foot-passengers, and especially for children of tender years, extremely dangerous, and thereby rendering the destruction by fire of each of said plaintiffs' said dwelling-houses extremely probable by and from sparks of fire" from the locomotives; that the tracks and railroad, so constructed, operated, and maintained, render the approach for vehicles to the front of each plaintiff's residence "extremely difficult and unsafe, and practically prevent and hinder the approach of vehicles;" that defendants almost daily leave freight-cars standing for hours at a time in front of plaintiffs' residences, and unload freight of different kinds on East street, and use said street "to all intents and purposes as a freight depot, to the great annoyance and special damage of the plaintiffs, and each of them;" that "said nuisance, trespasses, wrongs, and injuries so inflicted upon plaintiffs, and each of them, greatly decrease the value of said several lands and premises of plaintiffs, and each of them, to their irreparable damage;" that defendants threaten to continue the nuisance, etc. The prayer is for an abatement of the nuisance, and for an injunction. No damages are asked.

Did the court err in sustaining the demurrers to this complaint? To enable the plaintiffs to maintain this action, it must be clearly shown that they have sustained, or will sustain, a special and peculiar injury, irreparable in its nature, and different in kind from that sustained by the general public. Appellants, in order to avoid this rule, which is universal, claim that this action is based upon the provisions of section 251 of the civil practice act, which, it is contended, changes the common-law rule upon this subject, and hence that the authorities from other states, based upon such rule, are not applicable to this case. The statute reads as follows: "Anything which is injurious to health, or indecent and offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance, and the subject of an action. Such action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by the nuisance; and by the judgment the nuisance may be enjoined or abated, as well as damages recovered." Gen. St. § 3273. This statute, instead of changing, simply affirms the rule above stated. Prosser v. City of Ottumwa, 42 Iowa, 511; Innis v. Railway Co., 76 Iowa, 167, 40 N.W. 701. It was copied from the statute of California, and, prior to its adoption by the legislature of this state, the supreme court of that state, in construing the statute, held, in Blanc v. Klumpke, that if the nuisance complained of only affects "the plaintiff in common with the public at large, although in a greater degree, he cannot have his private action." 29 Cal. 159. This principle, under the same statute, was subsequently affirmed in Yolo Co. v. City of Sacramento, 36 Cal. 195, and in Grisby v. Water-Works Co., 40 Cal. 406. The contention of appellants, as to the construction of the statute, is untenable.

Appellants claim that the allegations of the complaint are sufficient to show that they have sustained damages special and peculiar to themselves, and different in character from that which is common to the public. It must be admitted that it is sometimes difficult to determine whether or not the alleged injuries caused by a common nuisance are of a kind that give to individuals a right of action. Among other things, regard must always be had to the locality where the alleged nuisance exists, as the application of certain facts might be different in large cities from that of smaller towns and villages, or in the country. The people in each locality are of course, equally entitled to the free protection of the law; but the danger of fire, depreciation of property, deprivation of its enjoyment, inconvenience or annoyance in crossing a street or road, would be different in degree and kind in different localities. Robinson v. Baugh, 31 Mich. 297; Sparhawk v. Railway Co., 54 Pa. St. 430. "To enumerate all the special instances would be an endless, as well as utterly useless, task, for the fact that a nuisance has been restrained in one case furnishes no reason why it should be refused or granted in another, as each case must stand upon its own facts, circumstances, and equities, and no definite or precise standard can be given." Wood, Nuis. § 809. As the plaintiffs declined to amend their complaint after having been granted a reasonable time so to do, it must be presumed that the facts are stated in the complaint as strongly as they could be drawn in favor of the plaintiffs. The averment relative to the branch track does not merit any consideration, as it is not specific enough to enable us to determine whether or not any special injury, other than is alleged by the construction of the main track, is occasioned thereby. Its exact location is left uncertain. It is not shown upon which side of the street or of the main track it runs, nor is it stated how far distant from the main track or from the sidewalk it is. The allegation of the complaint, relating to the danger from fire and to the depreciation in value of appellant's property, are wholly insufficient to enable them to maintain this action thereon, for the reason that they are merely conclusions of law. No facts are stated which enable the court to determine whether there is any danger of fire from the locomotives attached to defendant's cars. The mere running of railroad trains, propelled by steam, through the public streets of a town, is not of itself sufficient to constitute a nuisance on account of the remote probability that a fire might be, at some indefinite time in the future, occasioned by sparks escaping from the locomotives, and igniting the buildings adjacent to the street. It is not alleged that any sparks of fire have ever occurred from this cause, or that defendants are not using the most improved appliances and the best means within their reach to prevent the...