Shephard v. Barnett

• Decision Date: 27 February 1880
• Citation: 52 Tex. 638
• Parties: B. A. SHEPHARD v. J. W. BARNETT ET AL.
• Court: Texas Supreme Court

52 Tex. 638

B. A. SHEPHARD

v.J. W. BARNETT ET AL.

Supreme Court of Texas.

Feb. 27, 1880.

APPEAL from Harris. Tried below before the Hon. James Masterson.

Suit for damages, brought by B. A. Shephard against the appellees, for the recovery of $1,000, because of injury alleged to have been sustained by him in the depreciation in value of a tract of land owned by him in the city of Houston, caused by the defendants fencing and closing up a street lying in front of and adjacent to his land.

The petition, after giving the names and residence of parties, avers that the plaintiff owned, by a good, valid, and sufficient title in fee-simple, a tract of land containing ten acres, a part of the S. H. Williams survey, situate in the city of Houston, Harris county, Texas; that there was a map of the S. H. Williams survey, showing its subdivisions, recorded in Harris county, and on that map plaintiff's tract was designated as lot 51, and was bounded on said map on the north by Wilson street, on the east by lot 52, on the south by Williams street, and on the west by lot 50; that Williams street was a street or highway belonging to the public, and by the record of the map was dedicated to the public use; that petitioner purchased his land in 1861, and that he and those from whom he deraigned title did so with reference to the bounds of the land as set forth in the map, and with the view of having an outlet from his land by way of Williams street; that he was entitled to the use and enjoyment of that street, and that the street was an easement belonging to his land. The plaintiff charged that defendants had erected fences across Williams street, and had thereby prevented the free passage and use of the street, to the damage of petitioner in the sum of $1,000.

The trial amendment of plaintiff made the further allegation, that by the obstruction of Williams street, as charged in the original petition, the defendants had depreciated the value of lot 51, previously alleged to be the property of appellant, in the sum of $1,000, for which amount he prayed judgment.

The defendants, after general denial, excepted specially to the petition, but did not except for the want of certainty in the averments of injury.

Charles Stewart, for appellant.

I. The original petition states a good cause of action. (Oswald v. Grenet, 22 Tex., 94; Dovaston v. Payne, 2 Smith's Lead. Cas., 213, and American notes thereto and cases cited.)

II. The original petition and trial amendment show a special and particular damage, and state a good cause of action therefor. (Wood's Law of Nuisances, sec. 653, p. 679.)

W. P. Hamblen, for appellee.

I. Appellant's petition does not show a good cause of action--

1. Because it does not show that character of damage which is special to himself.

2. Because he calls upon the court to render judgment, which it will only render at the suit of the public. (3 Black. Comm., sec. 220; 2 Id., pp. 173, 174.)

II. Acts complained of are not actionable by an individual, but are public nuisances, if anything, and must be prosecuted by the public. (3 Black. Comm., sec. 3, p. 4, and note; sec. 220, and note.)

III. The damages are not sufficiently set out in the petition to be good on special demurrer. (Sparhawk v. Union Pass. R. Co., 54 Penn., 401; Spooner v. McConnell, 1 McL., 337; Vason v. Augusta, 38 Ga., 542.)

IV. The petition did not show that the acts complained of were only damaging to plaintiff, nor wherein plaintiff is damaged different from the public generally. (Blanc v. Klumpke, 29 Cal., 156.)

GOULD,...