Powell v. Bunger

• Decision Date: 14 March 1883
• Docket Number: 9810
• Citation: 91 Ind. 64
• Parties: Powell et al. v. Bunger
• Court: Indiana Supreme Court

91 Ind. 64

Powell et al. v. Bunger

No. 9810

Supreme Court of Indiana

March 14, 1883

Rehearing Date: October 13, 1883

Petition for a Rehearing Overruled, Reported at: 91 Ind. 64 at 70.

From the Dearborn Circuit Court.

The judgment is reversed, at appellees' costs, and the cause is remanded with instructions to sustain the demurrer to the second paragraph of the complaint.

W. S Holman and J. B. Coles, for appellants.

A. C. Downey and S. R. Downey, for appellee.

Black C. Woods, C.J.

OPINION

Black, C.

This was an action commenced in the Ohio Circuit Court by the appellee against the appellants.

The complaint was in two paragraphs. The cause of action set forth in the first paragraph was the obstruction by the appellants of the appellee's private way from his lands through their lands, the denial of his right thereto by the appellants, their threat to continue the obstruction, and the consequent damage to the appellee, and impairment of the value of his said lands, the lands of all the parties being in Ohio county; and the appellee in this paragraph prayed that his said way might be established, and that his right thereto might be quieted, that appellants might be enjoined from obstructing the way, and that appellee might recover damages and have other proper relief.

The second paragraph alleged the existence of a public highway through and over the lands of the appellants in said Ohio county, for all the citizens of said county to go, return, pass and repass, on foot, with horses, wagons, carriages and other vehicles, at all times, of their free will and pleasure; that the appellee was the owner of certain tracts of land at and adjoining said highway, and had lawful right to pass and repass on said highway, to carry off the products of his farm and for other purposes, and would have used said highway, as aforesaid, had it not been for the wrongful acts of the appellants; yet they, well knowing the premises, on, etc., wrongfully and unjustly, to injure the appellee and to prevent him from having the use of said highway, prohibited him from using said highway, and shut and closed and obstructed the same, from, etc., until the commencement of this action, and thereby prevented the appellee from using the same as he otherwise might and would have done; by means of which the appellee was obliged to and did use and travel a much more circuitous and difficult way, and for a much greater distance than he otherwise would, and of right ought to have done, to his damage $ 500; that appellants threatened to continue to obstruct said highway and to prevent appellee from using the same, which would work great and irreparable damage to him and to his said lands; and he asked judgment for $ 500 damages, and that appellants might be enjoined, etc.

A demurrer to the second paragraph of the complaint, for want of sufficient facts, was overruled.

Issues were formed, and the venue was changed to the Dearborn Circuit Court, where a trial by jury resulted in a general verdict for the appellee, with nominal damages, and judgment was accordingly rendered in his favor upon both paragraphs of the complaint.

The overruling of the demurrer to the second paragraph of the complaint, with other subsequent rulings, has been assigned as error; and as that paragraph must be held insufficient, other questions discussed by counsel need not be decided.

A person may not have an action for the obstruction of a public easement, which is an injury to him, only in the same manner that it is an injury to all other citizens; but he may have his action for a special injury to him in his person, trade, or estate, occasioned by such a nuisance.

In an action for an obstruction of a private way, the gist is the obstruction, the deprivation of the right of way; in an action for an obstruction of a public way, the gravamen is the special damage to the plaintiff.

These are very familiar general principles, but it is not always easy to distinguish between an injury which the complainant suffers in common with the public, and an injury which is so peculiar to himself as to support a civil action, and the reported cases are not without disagreement.

There was no allegation in the second paragraph of the complaint that the appellee had abated any obstruction, or that when actually passing along the highway he had been delayed or turned back by any obstruction; but he appears to have ceased to use the road because he was prohibited from using it by the appellants, and because they shut, closed and obstructed it; and thereafter he did not use this road or attempt to use it, so far as is shown by the complaint. He alleged that he would have used it to pass and repass, to carry off the products of his farm and for other purposes, and that the appellants, by prohibiting him from using the road, and shutting, closing and obstructing it, prevented him from using it, as he otherwise might and would have done, by means of which he was obliged to and did use and travel a much more circuitous and difficult way, and for a much greater distance than he otherwise would, and of right ought to have done. Because he had been prohibited and because an obstruction existed, he went a more circuitous and difficult way.

To be prohibited by one through whose lands a highway runs from passing upon the highway, and to cease to use or refrain from using the road because of such order, will not constitute a special injury from a public nuisance, or afford a right of action for the loss and inconvenience arising from going a more circuitous and difficult way; and while the injury to the public from an obstruction of a highway may rest in contemplation, there must be an actual hinderance to an individual to entitle him to his private remedy.

The way being a public one, every citizen had a right to pass and repass upon it, and to carry the products of his farm or other commodities upon it. This right is expressly alleged by the complaint as being in every citizen of the county, and it would be implied, without such averment, from the allegation that the road was a public highway.

We can not perceive how the appellee was specially injured, then, unless it was because of his proximity to the road obstructed. But one's right to use a public way for passage thereon is not affected by the distance of his residence therefrom. Proximity gives him no greater right of passage. All other citizens have as much right to travel on a public road as those who reside upon it or near it. Though the use may be more valuable to him whose land is near the road or adjoins it, and for whom it is the most direct way to market, yet his injury arising from the obstruction of the highway is the same in kind as that suffered by others of the community, though it may differ in degree from that of others.

This is not a question of one's being deprived of necessary means of...