Holmes v. Corthell

• Decision Date: 04 January 1888
• Citation: 80 Me. 31,12 A. 730
• Parties: HOLMES v. CORTHELL.
• Court: Maine Supreme Court

12 A. 730

80 Me. 31

HOLMES

v. CORTHELL.

Supreme Judicial Court of Maine.

January 4, 1888.

On exceptions from supreme judicial court, Washington county.

Trespass for obstructing a public way, whereby plaintiff claims to have suffered special damage. The defendant tiled a demurrer to the writ, which was sustained by the presiding judge, and the plaintiff alleged exceptions.

John H. French, for plaintiff. Harvey & Gardner, for defendant.

HASKELL, J. Trespass for obstructing a public way by building a stone wall across it, whereby the plaintiff claims to have suffered special damage. The distinction between trespass and trespass on the case is abolished by Rev. St. c. 82, 8 15. "A declaration in either form is good." Hathorn v. Eaton, 70 Me. 219. It is settled in this state that one who suffers special injury,—no matter how inconsiderable,—from a common nuisance, may recover damages in an action at law from the person creating it, (Rev. St. § 12; Brown v. Watson, 47 Me. 161; Dudley v. Kennedy, 63 Me. 465;) and from the person maintaining it after request to abate it, (Pillsbury v. Moore, 44 Me. 154.) Three demurrers to the declaration have been filed, and two amendments of it have been allowed. To the sustaining of the last demurrer to the declaration, as finally amended, the plaintiff has taken exception. The declaration avers the existence of a public way, and the obstruction of it by the defendant in erecting a stone wall across it, whereby, on a given day and on divers other days and times, etc., the plaintiff, in attempting to travel upon such way, was "hindered, obstructed, and prevented from passing" along it, and "incurred great danger and suffered great pain and inconvenience, in attempting to climb and pass over said wall," and thereby was injured in his comfort, property and the enjoyment of his estate. The plaintiff avers that he was "hindered," etc., from passing along the way. Be it so. No averment shows any specific damage from this hinderance. It does not appear that upon any special occasion he was thereby compelled to make a longer detour to reach a particular place where he had need to go; nor that he lost any time or was put to any expense thereby. He may have incurred danger and suffered pain in trying to climb the wall, both of which may have resulted from his own careless or rash conduct, for which the defendant is not responsible. The plaintiff avers that certain of the work-people in his sardine factory "were hindered and prevented from going to and attending to their work, whereby he lost and was deprived of their services." Suppose this to be true, where is the injury to the plaintiff? He does not aver the loss of their service to be at his cost, nor that their services, if rendered, would have been of any value to him. Upon this score the plaintiff does not appear to have suffered any damage.

Exceptions overruled.

PETERS, C. J., WALTON, DANFORTH, VIRGIN, and LIBBEY, JJ., concurred.

NOTE.

WATS—NUISANCE—ACTION BY LAND-OWNER FOB OBSTRUCTION. A private person cannot, without snowing some damage special and peculiar to himself, maintain an action to remove an obstruction from the public highway, or to recover damages therefor. Rude v. City of St. Louis, (Mo.) 6 S. W. Rep. 257; Marini v. Graham, (Cal.) 7 Pac. Rep. 442; Ditch Co. v. Anderson, (Colo.) 6 Pac. Rep. 515; Sohn v. Cambern, (Ind.) 6 N. E. Rep. 813, and note, 815; Brant v. Plumer, (Iowa,) 19 N. W. Rep. 842; Goodsell v. Fleming, (Wis.) 17 N. W. Rep. 679; nor can he maintain an action to enjoin or abate a public nuisance, Ranch Co. v. Brooks, (Cal.) 16 Pac. Rep. 250; St. Louis v. Knapp, Stout & Co., 6 Fed. Rep. 221; Potter v. Howe, (Mass.) 6 N. E. Rep. 233; Ofstie v. Kelly, (Minn.) 23 N. W. Rep. 863; Bushnell v. Robeson, (Iowa,) 17 N. W. Rep. 888. When other residents of a street suffer equally in kind with an abutting lot-owner by reason of the obstruction of the street, no special damage results to him from such public nuisance. Hogan v. Railroad Co., (Cal.) 11 Pac. Rep. 878. One damaged in the same manner, though possibly more than the general public, does not sustain special injury. Ranch Co. v. Brooks, (Cal.) 16 Pac. Rep. 250. But in Railroad Co. v. Goldberg, (Tex.) 5 S. W. Rep. 824, it was held, in an action to recover damages to a homestead caused by the construction of a railway along the street in front of it, that plaintiff was not precluded from recovery on the ground that other property owners in the same locality had also been injured in the same manner. See, also, respecting the rights of individuals in regard to nuisances which are public in their nature, McDonald v. City, (N. J.) 7 Atl. Rep....