Stricker v. Hillis

• Decision Date: 31 January 1910
• Parties: HERMAN STRICKER, Appellant, v. H. HILLIS and E. H. BUTLER, Respondents
• Court: Idaho Supreme Court

106 P. 1128

17 Idaho 646

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

Supreme Court of Idaho

January 31, 1910

NONSUIT-SUFFICIENCY OF EVIDENCE-NUISANCE-ACTION FOR DAMAGES BY PRIVATE PARTIES.

1. Evidence in this case examined, and held that it was error for the trial court to grant a nonsuit on the evidence submitted.

2. Held, that the evidence in this case proved or tended to prove the material allegations of the complaint.

3. Where, by reason of an obstruction in a public highway, an individual has suffered a loss not common to the public and in which the public do not share, he should be allowed to maintain his action for the injury sustained. To have suffered in a different manner or extent from the public at large is to have received a special and peculiar damage for which a recovery may be had by a private party.

(Syllabus by the court.)

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

Action by plaintiff against the defendant for damages caused by obstructing and closing up a public highway, and to enjoin and restrain the defendants from continuing such acts. Judgment for the defendants and plaintiff appealed. Reversed.

Judgment reversed, and a new trial granted. Costs awarded in favor of appellant.

F. A Hutto, for Appellant.

The defendants, by their motion for nonsuit, "admit all the facts of which there is any evidence, and all the facts which the evidence tends to prove." (Later v Hayward, 12 Idaho 78, 85 P. 494.)

By obstructing this road, Stricker is specially injured, and therefore has a right to abate this nuisance by his action here filed. (Stricker v. Hillis, 15 Idaho 709, 99 P 831; Blanc v. Klumpke, 29 Cal. 156.)

M. J. Sweeley, for Respondents.

It appears from the proof submitted by appellant that although the alleged highway was obstructed to the east of his farm, yet he had a way of egress and ingress, that he could use his farm in all ways just as he did before the obstruction complained of, and that as between him and the rest of the public his injuries were in degree only and not in kind. As to his claim that people would not come to his place for board and lodging, the facts are such as to bring the case within the rule announced by this court in Stufflebeam v. Montgomery, 3 Idaho 20, 26 P. 125.

AILSHIE, J. Sullivan, C. J., and Stewart, J., concur.

OPINION

AILSHIE, J.

This case was before this court at the January, 1909, term on the sufficiency of the allegations of the complaint. The court held that the complaint stated a cause of action and that the demurrer should have been overruled. (Stricker v Hillis, 15 Idaho 709, 99 P. 831.) The cause was remanded, with direction to the court to overrule the demurrer. After the case was remanded the plaintiff amended his complaint and added an additional allegation to the effect that prior to the close of the Boise-Kelton road on the east of plaintiff's premises and residence, he had been running a wayside inn or hotel and depending on such business for earning a livelihood, and that his hotel was on the main thoroughfare along which the public generally traveled, and that to close up this road and shut off the travel by way of plaintiff's place would greatly damage him in that it would destroy his business. The case went to trial on the complaint as amended, and after plaintiff had introduced his evidence and rested his case the defendant moved for a nonsuit, which motion was sustained by the court. Several grounds appear to have been urged in support of the motion, but the court in the order and judgment recites that "the defendant moved for a nonsuit against the plaintiff for the reasons, among others, that the plaintiff has not proved the material allegations of his complaint, and that the plaintiff cannot maintain his action but that it should have been...