Thelan v. Farmer

• Decision Date: 18 December 1886
• Citation: 36 Minn. 225
• Court: Minnesota Supreme Court
• Parties: BENJAMIN THELAN and others <I>vs.</I> PAMELIA FARMER and others.

36 Minn. 225

BENJAMIN THELAN and othersvs.

PAMELIA FARMER and others.

Supreme Court of Minnesota.

December 18, 1886.

Appeal by plaintiffs from a judgment of the district court for Washington county, McCluer, J., presiding.

Searles, Ewing & Gail, for appellants.

Clapp & Macartney, for respondents.

GILFILLAN, C. J.

This is an action for an injunction to restrain the defendants, the Farmers, from constructing in Union place, a public street in the city of Stillwater, a hay-scale, which the complaint alleges will, if constructed, be a public nuisance. The court below rendered judgment for the defendants on the pleadings, on the ground, as we understand, that the complaint does not show that plaintiffs will sustain any injury from the contemplated nuisance, special to themselves. The rule is well settled, and has in numerous cases been acted upon by this court, that no action can be maintained by a private person for an interference with or obstruction to a public highway unless he is thereby specially injured, and in a way not common to himself and the public at large, and that it is not enough that the injury to him is greater in degree than the public generally suffer, if it be the same in kind. When an injury is special and distinct from that of the general public is sometimes difficult to determine. Some cases are very near the line. From the statements of the pleadings, and the situation of the premises as shown by a plat assumed and conceded on the argument to be correct, we find this to be one of those cases. For that reason we confine the scope of our decision to the precise facts of the case, which are these: Union place is a public street 40 feet in width. The defendants, the Farmers, owning lot 2 in block 25 of the town of Stillwater, which fronts on Union place, are about to construct, under permission of the city, a hay-scale in the street immediately in front of their lot, which, when constructed, will extend into the street a distance of 15½ feet from their lot line. Plaintiff Edward L. Hersey is the owner of lot 1 in said block, and lots 1 and 2 in block 26. The plaintiff Thelan owns lot 3 and the N. ½ of lot 4 in block 26. The plaintiff Mower owns lot 3 in block 25. All the lots front on Union place, the two blocks being opposite each other; lot 2, and a part of lot 3, in block 26, being opposite lot 2, in block 25. The allegations as to injury in the complaint are that the defendants "will thereby obstruct said public way, known...