Taylor v. Cooke

• Decision Date: 16 April 1931
• Citation: 113 Conn. 162,154 A. 349
• Court: Connecticut Supreme Court
• Parties: TAYLOR et al. v. COOKE et al.

154 A. 349

113 Conn. 162

TAYLOR et al. v. COOKE et al.

Supreme Court of Errors of Connecticut.

April 16, 1931

Appeal from Court of Common Pleas, New Haven County; Walter M Pickett, Judge.

Suit for injunction by Merritt Taylor and others against Lenora Cooke and others.A demurrer to the complaint was sustained plaintiffs refused to plead further, judgment was entered for defendants, and plaintiffs appeal.

No error.

MALTBIE, C.J., and HAINES, J., dissenting.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

William J. Kennedy, of New Haven, for appellants.

Charles H. Harriman, William A. Bree, and William J. Carrig, all of New Haven, for appellees.

AVERY J.

The amended complaint alleges the following facts: The plaintiffs are residents, tax-payers, and owners of real estate for business purposes, summer residence rentals, and home purposes at Short Beach in the town of Branford.On the beach front, there is a " walk" or path which traverses the entire length of the water front, known as the " Walk-along-the-Beach," which is a public way, having been dedicated and rededicated from time to time to the public use for more than fifty years by different property owners on the Short Beach water front, the dedication and rededication to public use giving the plaintiffs their predecessors in interest, and the plaintiffs' lessees the right to enjoy the use of the walk as a way of convenience, necessity, and pleasure.The " Walk-along-the-Beach" has been and is a public way more especially between June 1st and October 1st in each year.The plaintiffs, their predecessors in interest and lessees, and the public in general, have used and do use the walk as a public way of convenience, necessity, and pleasure continuously; and have accepted and do accept and use the same as a public way since the walk was dedicated for public use.The walk traverses the entire length of the beach passing in front of premises owned by the defendants along the water front.The defendants have erected gates and fences in front of their several properties across the walk, and some of the defendants have threatened to close, and other defendants have closed, the gates in front of their respective properties, and thus have prevented the plaintiffs and the public in general from the enjoyment of the way.Repeated demands have been made of the defendants to remove the obstructions, but they have refused to do so.

The plaintiffs claim that, as a result of the acts of the defendants, they will be peculiarly and specially damaged, in that, with the right of the plaintiffs as owners of real properties at Short Beach and the right of the tenants of the plaintiffs as occupying real properties belonging to the plaintiffs to use the way prohibited by the defendants, a decrease will be caused by approximately one-half in the demand for rentals and purchases of the plaintiffs' properties, and a like decrease in the rental value and sales value thereof will be caused.One of the plaintiffs(Verwholt) occupies his own property at Short Beach, and conducts a general store business thereon, the business depending on the large increase of people at Short Beach in the summertime, and substantially on those occupying, as summer rentals, the properties of the plaintiffs.With the decrease in rentals caused by the defendants' acts, the plaintiff Verwholt will be still more especially and peculiarly damaged by reason of the loss in sales in his general store business, which will be substantially decreased.

The amended complaint was demurred to on the ground that the acts and threatened acts set forth constitute a public nuisance, which the plaintiffs, as private individuals, were bringing this action to enjoin; and that it did not appear that the plaintiffs, or any of them suffered any special or peculiar damages different from other members of the public similarly situated, or the public in general: and that the plaintiffs did not allege nor did it appear in the amended complaint that the acts of the defendants constituted a private nuisance to any of the plaintiffs.The demurrer was sustained by the court, and the plaintiffs, refusing to plead further, have appealed from the judgment entered for the defendants on the demurrer sustained.

It is not stated in the complaint, nor does it appear, that any of the plaintiffs' properties are contiguous to the way, or that access to plaintiffs' properties are either of necessity, or even by convenience, over it, or that any obstructions placed, or threatened to be placed, thereon by the defendants, were on a part of it abutting the properties of any of the plaintiffs, or that the obstructions or any of them interrupted or directly prevented the plaintiffs from doing business with persons residing on the way or elsewhere.The complaint thus states the case of an obstruction to a public way, constituting a public nuisance.In respect to a public nuisance of this character, it is very clear that a complaint asking injunctive relief will not be entertained, unless it shows that the plaintiff will sustain a special or peculiar damage, an injury distinct in nature as distinguished from differing in degree only from that done to the public at large; moreover, the violation of the complainant's rights must be such as is, or will be, attended with substantial or serious damage.Bigelow v. Hartford Bridge Co.,14 Conn. 566, 578, 36 Am.Dec. 502;Norwich & Worcester R. Co. v. Storey,17 Conn. 371, 375;Frink v. Lawrence,20 Conn. 117, 120, 50 Am.Dec. 274;Falls Village Water Power Co. v. Tibbetts,31 Conn. 165, 169;Wheeler v. Bedford,54 Conn. 244, 248, 7 A. 22;Balf Co. v. Hartford Electric Light Co.,106 Conn. 315, 327, 138 A. 122." There must not only be a violation of the plaintiff's rights, but such a violation as is, or will be, attended with actual or serious damage.Even although the injury may be such that an action at law would lie for damages, it does not follow, that a court of equity would deem it proper to interpose, by the summary, peculiar and extraordinary remedy of injunction.[Spencer v. London & Birmingham R. Co.], 8 Simons, 194.It is obviously not fit that the power of that court should be invoked, in this form, for every theoretical or speculative violation of one's rights.Such an exercise of it would not only be wide from the object of investing those courts with that power, but would render them engines of oppression and vexation, and bring them into merited odium.It is a power which is extraordinary in its character, and to be exercised generally only in cases of necessity, or where other remedies may be inadequate, and even then with great discretion and carefulness."Bigelow v. Hartford Bridge Co., 14 Conn. 565, 579, 36 Am.Dec. 502, supra.

In Newton v. New York, N.H. & H. R. Co.,72 Conn. 420 427, 44 A. 813, we pointed out that an abutting landowner has, by reason of that ownership, some privileges in the highway which are not given to the public...