Jones v. St. Paul, M. & M. Ry. Co.

• Citation: 16 Wash. 25,47 P. 226
• Court: United States State Supreme Court of Washington
• Decision Date: 03 December 1896
• Parties: JONES v. ST. PAUL, M. & M. RY. CO.

47 P. 226

16 Wash. 25

JONES v. ST. PAUL, M. & M. RY. CO.

Supreme Court of Washington

December 3, 1896

Appeal from superior court, Snohomish county; John C. Denney, Judge.

Action by Henry A. Jones against the St. Paul, Minneapolis &amp Manitoba Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

Burke Shepard & Woods, for appellant.

L. C. Whitney and Coleman & Fogarty, for respondent.

HOYT, C.J.

It was alleged in the complaint in this action that the defendant in constructing its bridge across the Snohomish river, so placed its piers that float wood, brought down by a freshet lodged against them, so as to entirely prevent the navigation of the river; that such river was navigable; that, by reason of the jam caused by the obstruction, the plaintiff, who was the owner of a steamboat which navigated the river, was unable to take his steamboat down such river, and was compelled to keep it tied up for the period of 12 days, to his damage in the sum of $1,000. After certain motions to make the complaint more definite and certain had been denied, defendant demurred thereto. Its demurrer was overruled, and the question thus raised is relied upon here as ground for the reversal of the judgment.

If the complaint failed to state a cause of action, the objection raised by the demurrer was not waived by filing an answer to the complaint after such demurrer had been overruled. Our statute specially authorizes the question of the sufficiency of the complaint to be raised even for the first time in this court. Did the complaint state a cause of action? If the defendant was charged with having done anything that was unlawful, it was that it had obstructed the navigation of the river. That the obstruction of a navigable river or any other highway, when unlawful, constitutes a public nuisance, is beyond question. To that effect are all the cases. That the general rule is that a public nuisance must be proceeded against in the name of the public by indictment or information is conceded. It is also conceded that for a public nuisance an action will not lie at the instance of a private party, unless he is specially injured thereby. If the injury which he suffers therefrom is that which is common to the entire public, he cannot maintain an action therefor.

But it is claimed by the respondent that the allegations of his complaint showed that he had been specially damaged. These allegations, however, only showed that he had been damaged by reason of the fact that he could not navigate the river. But the entire public was as fully deprived of that right as was plaintiff. Hence the damage which he had suffered was also suffered by the general public, and the fact that his steamboat was so situated that the injury flowing from the prevention of navigation was different from that which others might have suffered did not make the injury special to him. If the obstruction interfered with navigation, it injured alike every one who desired to navigate the stream. It might as well be claimed that one who was operating two boats, and was therefore incommoded as much again as one who operated but one, was specially injured, as to claim that...