Jacksonville, T. & K.w. Ry. Co. v. Thompson

• Decision Date: 20 November 1894
• Citation: 34 Fla. 346,16 So. 282
• Court: Florida Supreme Court
• Parties: JACKSONVILLE, T. & K. W. RY. CO. v. THOMPSON.

16 So. 282

34 Fla. 346

JACKSONVILLE, T. & K. W. RY. CO. v. THOMPSON.

Florida Supreme Court

November 20, 1894

Appeal from circuit court, Putnam county; J. J. Finley, Judge.

Action by William Thompson against the Jacksonville, Tampa & Key West Railway Company to recover alleged damages for the obstruction of a public road. From an order overruling its demurrer to the complaint, defendant appeals. Reversed.

Syllabus by the Court

SYLLABUS

1. The willful obstruction of a public highway is an indictable offense, and a public nuisance, yet no individual can maintain a suit for any damage, inconvenience, or expense suffered by him by reason of such obstruction in common with the people of the community.

2. In order to maintain a suit for the willful obstruction of a public highway, the person aggrieved must have suffered some special and particular damage, differing not only in degree but in kind, from the damages sustained by the community at large.

3. The reason given by the authorities for the rule announced in the preceding headnotes is that a suit does not lie against one obstructing a public highway in favor of every one passing along the same is to avoid multiplicity of suits, and because, if the contrary rule prevailed, the great multiplicity of suits would of itself become an intolerable evil.

4. The fact that the plaintiff lives near or upon the public highway which is obstructed does not change the rule. If by proximity to the highway he has occasion to use the same oftener than other citizens, he only suffers damages to a greater degree but not of a different kind, to that sustained by all others who have occasion to travel the road.

5. If one portion of a declaration containing only one count be repugnant to and inconsistent with other portions of the same declaration, such repugnant and inconsistent allegations destroy and neutralize each other, and the declaration is bad on demurrer.

6. A plaintiff owning property abutting upon a public highway which has been obstructed cannot recover damages on account of the diminution in value of said property, caused by said obstruction, where there is no allegation that said obstruction comes into physical contact with said property or with said highway where it immediately abuts said property.

COUNSEL J. R. Parrott and T. M. Day, Jr., for appellant.

Geo. P Fowler, for appellee.

OPINION

LIDDON C.J.

This action was brought by the appellee to recover of the appellant damages for the alleged obstruction of a public road. The amended declaration alleges, in substance, that on June 25, 1885, the plaintiff was the owner in fee and occupant of certain premises (describing them), upon which he resided and had his home from the aforesaid date to the commencement of the suit (June 19, 1888); that said land adjoins and abuts that certain public road and higbway known and called 'Brown's Landing Road,' leading from the city of Palatka to Brown's Landing, both points being in Putnam county; that said road was the direct and nearest road open to the public use from the residence of the plaintiff to said city; that the defendant, on the date first mentioned, with force and arms and strong hand, without the consent of plaintiff or right or authority of law, broke and entered said public road and highway, and impeded and obstructed the same from said date to the time of the commencement of said suit, by digging ditches and throwing up embankments along said public road, and laying down wooden ties and iron rails thereon, and by building a railway track thereon, and by using the same for the daily and frequent passage of railway locomotives, cars, and trains, whereby said public road became wholly impeded, obstructed, unfit and unsafe for public use. The injury alleged to be done plaintiff by such action of the defendant is that neither he nor his family, agents, nor servants could travel or pass over and along the said road to the said city of Palatka on foot, horseback, or with vehicles; that he had been cut off and deprived of his rights and means of ingress and egress to and from his residence to said city from the time of said obstruction to the beginning of the suit, and compelled to travel and convey his goods, supplies, and necessaries for himself and family, and haul his farm products, a long distance in order to reach his market at the city of Palatka; and had been put to great expense and loss of time by reason of said impediments and obstructions; that his land and home had thereby become greatly depreciated in value. The plaintiff claimed $2,000 damages. The defendant demurred to this amended declaration, which demurrer was overruled by the court.

A number of assignments of error are made, but the conclusion we reach disposes of the case upon a consideration of only one of them, which is the first, and predicated upon the above-mentioned ruling. The fourth ground of the demurrer to the amended declaration was that 'the gist of plaintiff's action is a public wrong, and not a private wrong; therefore the said plaintiff has no right or ground of action.' The seventh ground was, 'because said declaration does not set forth a good cause of action.' The seventh two grounds, substantially the same, and being well taken to the declaration, relieve us from consideration of the other matters set up in the demurrer. Without pausing to consider the indefinite and somewhat contradictory allegations of the declaration, we pass at once to the gist of the matter. The willful obstruction of the public highway as stated in the declaration was an indictable offense, a public wrong and nuisance. McClel. Dig. § 8, p. 428; Palatka & I. R. R. Co. v. State, 23 Fla. 546, 3 So. 158; Savannah, F. & W. Ry. Co. v. State, 23 Fla. 579, 3 So. 204. While parties guilty of such obstruction might be punished by indictment, and the obstruction abated as a public nuisance by proper proceedings in behalf of the state, yet no individual can maintain a suit for any damage, inconvenience, or expense suffered by him by reason of the obstruction in common with the people of the community. In order to maintain such suit he must have suffered some special...