Stufflebeam v. Montgomery

• Decision Date: 09 March 1891
• Citation: 3 Idaho 20,26 P. 125
• Parties: STUFFLEBEAM ET UX. v. MONTGOMERY ET UX
• Court: Idaho Supreme Court

26 P. 125

3 Idaho 20

STUFFLEBEAM ET UX. v. MONTGOMERY ET UX

Supreme Court of Idaho

March 9, 1891

PUBLIC NUISANCE-BILL OF EXCEPTIONS-SPECIAL DAMAGES.-If a bill of exceptions is presented for settlement after the trial of the cause, and is certified to as correct by respondent's attorneys, and such bill is thereafter settled by the judge and used on the hearing of the motion for a new trial, it is too late for the respondents to raise the objection, for the first time in this court, that such bill was not settled in time.

OBSTRUCTION OF PUBLIC STREET-PUBLIC AND PRIVATE NUISANCE DISTINGUISHED-SPECIAL DAMAGES.-To maintain an action for special damages, caused by an obstruction of a public street constituting a public nuisance, a plaintiff must allege in his complaint and establish facts showing that he has sustained special damages of a different kind and character than the damages sustained by the public.

(Syllabus by the court.)

APPEAL from District Court, Bingham County.

Reversed and remanded.

John T. Morgan and T. M. Stewart, for Appellants.

To authorize plaintiffs to sue, they must have suffered an injury different in kind from that sustained by the public at large. (Bigley v. Nunan, 53 Cal. 403; Jarvis v. Railroad Co., 52 Cal. 438; Marini v. Graham, 67 Cal. 130, 7 P. 442; Ranch Co. v. Brooks, 74 Cal. 463, 16 P. 250; Mehrhof Bros. Brick Mfg. Co. v. Delaware etc. R. Co., 51 N. J. L. 56, 16 A. 12; Innis v. Railway Co., 76 Iowa 165, 40 N.W. 701.) To authorize plaintiffs to sue, there must be injury actual, present, special and peculiar to plaintiffs. (Wood's Law of Nuisance, 646, 659; Clark v. Railway Co., 70 Wis. 593, 5 Am. St. Rep. 187, 36 N.W. 328; Rude v. City of St. Louis, 93 Mo. 408, 6 S.W. 258.) Injunction will not be issued on application of an individual to prevent perpetration of an act prohibited by a public statute merely because it might diminish profits of a trade or business. (Smith v. Lockwood, 13 Barb. 209; Brainard v. Railroad Co., 7 Cush. 506; Hughes v. Railroad Co., 2 R. I. 494; Angell & Durfee on Highways, 284.) In an action by a private party, based on acts constituting public nuisances, depreciation of value of property can never be considered. (Hopkins v. Railroad Co., 50 Cal. 194; Severy v. Railroad Co., 51 Cal. 195; Bigley v. Nunan, 53 Cal. 404.) When a party has been admitted as a witness he is a witness for all purposes, and may testify as to any question of fact material to the issue, and therefore as to his own intent in any act done by him. (Seymour v. Wilson, 14 N.Y. 567; Forbes v. Waller, 25 N.Y. 439; McKown v. Hunter, 30 N.Y. 628; Kerrains v. People, 60 N.Y. 229, 19 Am. Rep. 158; Manufacturers' etc. Bank v. Koch, 105 N.Y. 630, 12 N.E. 9; Ross v. State, 116 Ind. 495, 19 N.E. 451.) To constitute a dedication of public highways, an intention on the part of the owner to dedicate is absolutely essential, and it must be clearly and unequivocally manifested. (Angell & Durfee on Highways, 142; Indianapolis v. Kingsbury, 101 Ind. 200, 213, 51 Am. Rep. 749; Gage v. Railroad Co., 84 Ala. 224, 4 So. 415; City of Shreveport v. Drouin, 41 La. Ann. 867, 6 So. 656; Holdane v. Village of Cold Spring, 21 N.Y. 474.) Silent acquiescence in use is not sufficient to show dedication. (3 Kent's Commentaries, 451; Bigelow v. Hillman, 37 Me. 52; Hoole v. Attorney General, 22 Ala. 190; Noyes v. Ward, 19 Conn. 250; Cyr v. Madore, 73 Me. 53.)

Hawley & Reeves, for Respondents.

That which is a public nuisance may also be a private nuisance to a particular individual by inflicting upon him special and peculiar damages, and in such case the individual can maintain his action. (Wood's Law of Nuisance, sec. 16 et seq.; Powers v. Irish, 23 Mich. 429; Cooper v. Randall, 59 Ill. 318; Grisby v. Water Co., 40 Cal. 396; Aram v. Schallenberger, 41 Cal. 449; Payne v. McKinley, 54 Cal. 532; Schultze v. North Pac. Transp. Co., 50 Cal. 592; Severy v. Railroad Co., 51 Cal. 194; Venard v. Cross, 8 Kan. 248; Brown v. Watson, 47 Me. 161, 74 Am. Dec. 482.) The owner of a public house can maintain an action for a nuisance by which the public are deterred from visiting the house. (Bonner v. Welborn, 7 Ga. 296; Cooper v. Randall, 59 Ill. 318; Railroad Co. v. Knapp, 42 Aia. 480.) Where the injury complained of is a constantly recurring grievance, or where the nuisance is not susceptible of adequate compensation in damages, injunction is the proper remedy. (Story's Equity Jurisprudence, 925; High on Injunctions, sec. 761 et seq.; 4 Field's Lawyer's Briefs, 647; Corning v. Nail Factory, 40 N.Y. 191; Arnold v. Klepper, 24 Mo. 273; McCord v. Iker, 12 Ohio 387; Porter v. Witham, 17 Me. 292.) The use of the land by the public, with the knowledge and consent of the owner, will be considered proof of dedication, and, if such use extend over a term of years, the animus dedicandi is presumed, and the owner is estopped to deny his prior dedication. (State v. Catlin, 3 Vt. 530, 23 Am. Dec. 230; Wilson v. Sexon, 27 Iowa 15; City of Chicago v. Wright, 69 Ill. 318; Cemetery Assn. v. Meninger, 14 Kan. 312; Hall v. McLeod, 2 Met. (Ky.) 98, 74 Am. Dec. 400; Heirs of David v. City of New Orleans, 16 La. Ann. 404, 79 Am. Dec. 586; Morrison v. Marquardt, 24 Iowa 35, 92 Am. Dec. 444.) User by the public is a sufficient acceptance. (San Francisco v. Canavan, 42 Cal. 543; Buchannen v. Curtis, 25 Wis. 99, 3 Am. Rep. 23.)

SULLIVAN, C. J. Huston, J., concurs. Morgan, J., took no part in the hearing or decision of this case.

OPINION

SULLIVAN, C. J.

This action was brought by the respondents to abate a public nuisance, which it is claimed plaintiffs had created by the erection of a certain building on certain lands lying between the west side of West Main street and the Utah and Northern Railway track, in the town of Blackfoot, Bingham county state of Idaho. The plaintiffs allege in their complaint and amendment thereto substantially as follows: That plaintiffs are husband and wife, and have been such during all the times mentioned in said complaint, and are living together as such; that they are the owners and in the possession of lots 1 and 20 in block 28 in said town of Blackfoot; that there are situated upon said lots certain buildings owned by and in the possession of plaintiffs, and used by them for hotel and restaurant purposes; that said property is situated on the west side of West Main street in said town; that said street extends in a northerly direction through said town, and is one hundred feet in width throughout its entire length, and was and has been for more than twelve years prior to the commencement of this suit used, appropriated, and dedicated as a public street; that the Utah and Northern Railway Company own a strip of land two hundred feet wide, extending through said town, and bordering on the easterly side of said West Main street, on which strip of land are situated the roadbed, track, depot, and other buildings of said company; that said corporation is a common carrier, and its trains stop at the depot in said town of Blackfoot, to receive and discharge mail and passengers; that said depot and other buildings of said railroad company are situated easterly of the above-described lots, and that there are no obstructions or impediments to travel or to the sight between said points, except those placed there by the defendants; that in the year 1890 the defendants commenced the erection of a frame building easterly and southerly from said lots and buildings of plaintiffs, and the said depot and place where passengers leave and enter the cars running upon said railroad, and continued to erect said building, and have maintained the same thereon; that by reason of said building so erected by the defendants travel in and upon and across said street has been impeded and obstructed, and communication made more difficult between said railroad depot and grounds and that part of said town situated west of said West Main street; that all the people of said Bingham county residing in and about said town of Blackfoot have been delayed and damaged by reason of the erection and maintenance of said building by the defendants as aforesaid; that, beside being injured and damaged thereby, and in common with other people and residents of said town of Blackfoot, the plaintiffs have been specially injured and damaged by reason that travelers visiting said town are unable to readily see and determine the location of plaintiffs' said hotel and restaurant, and in consequence thereof such travelers have become the guests of other hotels, to plaintiffs' damage in the sum of $ 100; that in consequence of said building erected and maintained as aforesaid, the said property of plaintiffs has become lessened and depreciated in value, to their damage in the sum of $ 100, and that the erection and maintenance of said building is a nuisance to the people of said town of Blackfoot and vicinity; that plaintiffs have requested defendants to remove said buildings, and they have refused to do so; that plaintiffs are without adequate remedy at law; that no pecuniary damages would be adequate compensation to plaintiffs, and that defendants are insolvent. Plaintiffs demand judgment for $ 200 damages and costs of suit, and that defendants be perpetually restrained from maintaining said building, and that the same be declared a nuisance, and that an order for its abatement be made. The defendants deny that West Main street in said town of Blackfoot is one hundred feet wide, or is, or ever was, of any greater width than sixty-six feet. They aver that the store building and warehouse of W. H. Danilson is ten feet and five inches upon the thirty-four feet which plaintiffs aver to be a part of said street; that said store has been so located during eleven years last...