Stricker v. Hillis

• Decision Date: 26 January 1909
• Citation: 15 Idaho 709,99 P. 831
• Parties: HERMAN STRICKER, Appellant, v. H. HILLIS and E. H. BUTLER, Respondents
• Court: Idaho Supreme Court

99 P. 831

15 Idaho 709

HERMAN STRICKER, Appellant, v. H. HILLIS and E. H. BUTLER, Respondents

Supreme Court of Idaho

January 26, 1909

PUBLIC HIGHWAYS-OBSTRUCTIONS-PUBLIC NUISANCE-RIGHT OF PRIVATE PERSON TO MAINTAIN ACTION TO ABATE.

1. Under the provisions of sec. 3656, Rev. Codes, any unlawful obstruction of the clear passage or use in the customary manner of any highway is a nuisance.

2. Under sec. 3657, "A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal."

3. Under the provision of sec. 3665 of Rev. Codes, "a private person may maintain an action for a public nuisance if it is specially injurious to himself, but not otherwise."

4. To authorize a private person to bring an action to abate a public nuisance, the plaintiff must allege and show that he will be specially injured in a different way from the public generally, or deprived of the free use of his own private property.

5. In an action by a private person to abate a public nuisance consisting of obstructions placed in and upon a public highway, wherein it is alleged that the road is the only one which plaintiff can use in getting out and into the place where he lives, and that the plaintiff's buildings are so located that there is no other way for the use and enjoyment of the same and carrying on his business of farming without constantly using said highway, and wherein it is alleged that his buildings are so situated with reference to the road that to deprive the plaintiff of the use and benefit of the road would require him to move said buildings at great cost; and that he has a valuable orchard adjoining the road and to deprive him of the use of said road would damage his orchard; and that he has a good and sufficient water right and ditches and laterals, and that if the road is obstructed, he will be compelled to build new ditches, the complaint states special injuries in which the public would not necessarily share or sustain, and states facts sufficient to authorize the plaintiff, a private person, to maintain an action to abate such nuisance.

6. In an action where a private person seeks to enjoin the maintenance of a public nuisance in unlawfully maintaining obstructions in a public highway, where the facts alleged show that the injury sustained by plaintiff is not shared by the general public and are different in kind from those inflicted upon the general public, and are direct and substantial, the complaint is sufficient in this particular to authorize the plaintiff to maintain such action.

(Syllabus by the court.)

APPEAL from the District Court of the Fourth Judicial District, for Twin Falls County. Hon. Edward A. Walters, Judge.

An action to enjoin a public nuisance in unlawfully placing and maintaining obstructions in a public highway. Demurrer to the complaint sustained. Plaintiff appeals. Reversed.

Judgment reversed and trial court directed to overrule the demurrer to the complaint. Costs awarded to appellant.

F. A Hutto, for Appellant.

This road being a public highway, to obstruct it constitutes a nuisance, and the remedy to be invoked is abatement. (Rev Code, secs. 3656, 3663, 3668.) If it is a public nuisance, this appellant may maintain this action "if it is specially injurious to himself." (Rev. Stat. 1887, sec. 3633; Small v. Harrington, 10 Idaho 499, 79 P. 461; Redway v. Moore, 3 Idaho 312, 29 P. 104; Jones on Easements, sec. 547; 9 Am. & Eng. Ency. 412; Hargo v. Hodgdon, 89 Cal. 623, 26 P. 1106; Shirley v. Bishop, 67 Cal. 543, 8 P. 82, 692; Schulte v. North Pacific Transp. Co., 50 Cal. 592; County of Yolo v. City of Sacramento, 36 Cal. 193; Blanc v. Klumpke, 29 Cal. 156; Jackson v. Kiel, 13 Colo. 378, 16 Am. St. Rep. 207, 22 P. 504, 6 L. R. A. 254; Hogan v. Central P. R. Co., 71 Cal. 83, 11 P. 876; see note at end of last case cited.)

Sweeley & Sweeley, for Respondents.

From sec. 946, Rev. Codes, it will appear that "The road overseer must commence in the proper court an action to abate the same as a nuisance." In the case of Stufflebeam v. Montgomery, 3 Idaho 20, 26 P. 125, this court held that an action to abate a nuisance caused by an obstruction of a public highway can be prosecuted only by the road overseer. We find no change, either by statute or by decision, of the law there announced, and cite it as decisive of the question at issue.

As shown by the allegations of the complaint, the obstructions complained of were of the highway itself, and affected the public generally. They were not so placed as to prevent the appellant from getting on to the highway from his own premises, but were of such a character as to prohibit the free use of the highway by the general public. This being true, the case comes under the rule announced by this court and by the courts of other states. (Aram, Trustee etc. v. Schallenberger, 41 Cal. 449; San Jose Ranch Co. v. Brooks, 74 Cal. 463, 16 P. 250.)

STEWART, J. Ailshie, J., concurs.

OPINION

STEWART, J.

This action was commenced by appellant to restrain the defendants from "plowing up, fencing, or in any manner obstructing" a public highway. A demurrer was filed to the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action, and was sustained by the trial court. The plaintiff declined to amend, and judgment was entered for the defendants. This appeal is from the judgment. The sole question presented upon the oral argument and in the briefs of counsel is: Does the complaint state facts sufficient to authorize the plaintiff to maintain this action? The position taken by counsel for respondent and with which the trial court seems to have agreed is, "the only situation which authorizes a suit by an individual who claims to be injured through an obstruction to a highway is where the obstruction is so placed as to prevent him from getting to the highway. If it is in the highway itself, and obstructs that thoroughfare so as to interfere with the passage by the public generally, the action must be brought by the road overseer, even though the person complaining is interfered with or damaged more than any other person."

Rev. Codes, sec. 3656, declares any unlawful obstruction of the clear passage or use, in the customary manner, of any highway a nuisance, and sec. 3657 defines a public nuisance as "A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal." Under the allegations of the complaint the defendants were maintaining and threatening to maintain a public nuisance, in that it is alleged that they were unlawfully obstructing the free passage or use in the customary manner of a highway. Under the provisions of sec. 3665, "A private person may maintain an action for a public nuisance if it is specially injurious to himself, but not otherwise." It therefore clearly appears that a private person is authorized by statute to maintain an action to abate a public nuisance, and in this case the plaintiff is fully authorized to maintain this action if the facts alleged bring the case within the provisions of the statute. In discussing the question of the right of a private person to maintain an action to abate a public nuisance, in the case of Redway v. Moore, 3 Idaho 312, 29 P. 104, this court said:

"Under the provision of that section a private person may have an action to abate or restrain the continuance of a public nuisance, provided he alleges and shows that such nuisance is specially injurious to himself."

In the case of Small v. Harrington, 10 Idaho 499, 79 P. 461, this court quotes with approval the above language and says:

"...