Houck v. Wachter

• Decision Date: 03 March 1871
• Parties: MICHAEL HOUCK v. LEWIS F. WACHTER, of P.
• Court: Maryland Court of Appeals

34 Md. 265

MICHAEL HOUCK v. LEWIS F. WACHTER, of P.

Court of Appeals of Maryland

March 3, 1871

APPEAL from the Circuit Court for Frederick County.

The facts are sufficiently given in the opinion of the Court.

The cause was agued before BARTOL, C.J., STEWART, MILLER, ALVEY and ROBINSON, J.

Albert Ritchie, for the appellant.

The Court erred in overruling the demurrer. The obstruction of a highway is a public nuisance, the remedy for which is indictment. There can be no private action for a public nuisance, unless the plaintiff has suffered special damage. Mayor & C. C. of Baltimore vs. Marriott, 9 Md., 160.

When special damage is the ground of action it must be set forth in the declaration. Jones vs. Hungerford, 4 G. & J., 402; Howard vs. Wil. & S. R. R. Co., 1 Gill, 311; Ellicott vs. Lamborne, 2 Md., 131; McTavish vs. Carroll, 13 Md., 429; Sedgwick on Dam., 141, 575.

There is no special damage laid. The per quod simply alleges that by means of the obstruction, the appellee was "deprived of the use of said highway." This was an inconvenience, or damage, suffered in common with all others and therefore not special. In an action for obstructing a private way, the gravamen is the obstruction; but for obstructing a public way, the special damage is the gravamen, and it must be set forth under the per quod. Baxter vs. Winooski T. Co., 22 Verm., 114; Lansing vs. Smith, 8 Cow., 147; Bap. Ch. of Schenectady vs. Sch. & T. R R., 5 Barb., 84.

Whatever is not the necessary consequence, is special damage and must be set forth. Even if the plaintiff could go behind the per quod, there is no special damage in the averment that he had to go a "very circuitous route." A longer route might have been a smoother, and a better, and a quicker one. Therefore, (if consequential damage be sufficient) if by going a circuitous route he suffered special damage, what was it? It is not set forth, and therefore the narr. is defective.

The narr. either claims general and special damages both, or else only general damages, and in either case is bad.

The wrong complained of cannot be laid with a continuando, or "at divers times."

A permanent trespass may be laid with a continuando, and distinct, independent trespasses may be laid "at divers times," but a wrong which exhausts itself in the commission, e. g., killing a horse, an assault and battery, etc., cannot be laid with either. In a suit for a private nuisance, the plaintiff may show its continuance, because the fact of its existence is the cause of action, and its duration an element of damage. But in a private suit, the existence or continuance of a public nuisance gives no right of action.

The special damage is the gist of the action, while the existence of the nuisance is a wrong against the public, redressed by indictment. Gould's Pl., secs. 85-95; Mitchell vs. Neale, 2 Cowp., 828; 9 Bac. Ab., Trespass I, 2.

The declaration shows no sufficient cause of action. No private suit lies except for some "extraordinary damage beyond the rest of the king's subjects." The damage must be peculiar to the party who suffers, not such as has been or may be experienced by the public generally; and it must differ in kind, not merely in degree, from that to which all are exposed. Greater proximity to the highway, or having more frequent occasion to use it, gives no ground of action. It must not only differ in kind, but it must be substantial, and not imaginary, or theoretical, or within the ill-favor of actions de minimis. It is no ground of action that a party may be incommoded, or put to a greater distance, or delayed, or turned back, or subjected to personal inconvenience. These things constitute the offence against the public, and it is for these that a party is indicted. But there is nothing in these things peculiar to the individual, and, therefore, there is no right of private action. Sel. N. P., (7 th Am. ed.) 1120, and (13 th Eng. ed.,) 1072; Hart vs. Bassett, 1 T. Jones, 156; Paine vs. Patrick, Carth., 191; Iveson vs. Moore, 1 Ld. Raym., 486; Rose vs. Miles, 4 M. & S., 101; Chichester vs. Lethbridge, 1 Burie, 71; Hubert vs. Groves, 1 Esp., 148; Greasly vs. Codling, 2 Bing., 263; Wilkes vs. Hungerford, 2 Bing., N. C., 281; Rose vs. Groves, 5 M. & G., 613; Ricket vs. Metr. R. Co, L. R., 2 H. of L., 175, (S. C., 16 Law Times, N. S.;) Winterbottom vs. Derby, L. R., 2 Exch., 316; Harrison vs. Sterett, 4 H. & McH., 540; Barron & Craig vs. Baltimore, 2 Am. Ju., 203; Stetson vs. Faxon, 19 Pick., 147; Co. Com. A. A. Co. vs. Duckett, 20 Md., 468; Thayer vs. Boston, 19 Pick., 511; Quincy Canal vs. Newcomb, 7 Met., 283; Seeley vs. Bishop, 19 Conn, 134; Abbott vs. Mills, 3 Verm., 521; Buller vs. Kent, 19 John., 223; Lansing vs. Wiswall, 5 Den., 213; Smith vs. Lockwood, 13 Barb., 209; Story vs. Hammond, 4 Ohio, 376; Barr vs. Stevens, 1 Bibb, 292.

The appellee's case is not within the most extended application of the principle. He avers no personal injury, no damage to property, or business, no expense, and nothing but what is imposed upon every body by every obstruction, that is, if the obstruction be impassable, to go around it, or take another road.

Wm. P. Maulsby, Jr., for the appellee.

To sustain the action, particular damage must be alleged and shown; not special damage in its technical sense. Mayne on Damages, 257.

The particular damage is properly laid. The cause of action fully appears. The objection that the particular damage should be set out in a per quod, is too formal; the particular damage suffered is plainly averred. Code, Art. 75, sects. 3-7.

The averment, "at divers times," &c., is sufficiently special. The wrong complained of is not the continuance of the nuisance at divers times, but the suffering at divers times of the particular injury. Gould on Pleading, 92.

The claim is for damages for particular injury, not special damages. The words, "hath been and still is," &c., may be omitted, and sufficient claim for damages is still averred. The true principle is that any, the least injury to an individual, as an expense of time, or money, or labor, &c., entitles him to an action. It is a special damage as contradistinguished from the injury to the public in general, which is theoretical, or vesting in presumption of law only. 7 Cowen, 609; Iveson vs. Moore, 1 Ld. Raymond, 486; Greasly vs. Codling, 2 Bingham, 263; Rose vs. Miles, 4 Maule & Sel., 101; Wilkes vs. Hungerford, 2 Bingham, N. C., 281; Rose vs. Groves, 5 Manning & Granger, 613; 19 Pickering, 147; 1 Binney, 463.

BARTOL C.J., delivered the opinion of the Court.

This suit was brought by the appellee to recover damages for the alleged obstruction of a highway by the appellant.

The first question presented by the record, and one which, in the opinion of a majority of this Court, is decisive of the case, arises upon the demurrer to the amended declaration. The ground of the demurrer is that the declaration does not contain any sufficient averment of special and particular damage suffered by the plaintiff from the obstruction complained of, to support the action. The obstruction of a highway is a common nuisance, and being a wrong of a public nature, the remedy is by indictment; it is not in itself a ground of civil action by an individual, unless he has suffered from it some special and particular damage, which is not experienced in common with other citizens. 9 Md., 178. In such case, the actual damage constitutes the gist of the action, and must be averred and proved.

These principles are well settled, and the only difficulty that can arise, grows out of their application to particular cases. With respect to what constitutes such special and particular damage, the decisions do not appear to have been entirely harmonious. We think, however, the present case is free from difficulty, and by recurring to the averments in the declaration, is of simple and easy solution.

After alleging the existence of the common highway, and that it was the customary, and most direct and convenient route for the plaintiff to pass and re-pass to and from the county town, mills, market, &c., with his horses, wagons and carriages, the declaration avers that the defendant wrongfully obstructed the same, by building a fence across it, which prevented the plaintiff from driving his horses, &c., laden with the products of his farm, and other commodities, over said highway, by reason of which the plaintiff was obliged to drive his horses, &c., laden as aforesaid, back again, and by a very circuitous road, and for a much greater distance than he otherwise would, and of right ought to have done."

Then follows the averment of special damage in the following words:

"And the plaintiff says that he had made a journey with his said horses and wagons, from his said farm, through and over said highway, to his market town, to wit: Frederick city, in said county, and on his said journey, was returning to his said farm, when he met the said obstruction, and was withheld by the defendant from removing the same, so that he could not pass, and was obliged to proceed to his said farm, from said market town, by a very circuitous route; and the plaintiff says that, at divers other times, he was greatly hindered and delayed, and put to great loss of time and money, by reason of being compelled, by means of said obstruction, to go and return, pass and re-pass to and from his said farm, by a very circuitous road, and of much greater distance to the said market town, and to mills and said court-house, than he otherwise would and of right ought to have done, with his said horses, wagons and carriages, laden as aforesaid; and by means of shutting up and closing said highway, wrongfully prevented him, the said plaintiff, from driving and conducting

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