Wheeler v. Bedford

• Decision Date: 31 August 1886
• Citation: 7 A. 22,54 Conn. 244
• Court: Connecticut Supreme Court
• Parties: WHEELER and wife v. BEDFORD.

7 A. 22

54 Conn. 244

WHEELER and wife

v. BEDFORD.

Supreme Court of Errors of Connecticut.

August, 1886.

Appeal from common pleas, Fairfield county.

Plaintiff filed a complaint to enjoin the inclosure of a part of a park on which his property fronted. The court sustained defendant's demurrer, and plaintiffs appealed.

Curtis Thompson and H. S. Sanford, for appellants. Goodwin Stoddard, for appellee.

PARK, C. J. This case presents the question whether the owner of a dwelling-house, and the land on which it stands, fronting on a town common or public park, its situation upon which greatly enhances its value, can maintain injunction proceedings against his neighbor, who seeks to destroy the common by inclosing a large part of it for his own use. Although in this case the intended appropriation is confined to a part only of the public ground, still the principles of equity that would restrain the attempted appropriation of the entire common would restrain the attempt to appropriate a substantial portion of it; for the injury to the plaintiff in each case would be the same in kind, the difference being only in degree.

The complaint alleges that the "public green or town common is of great and special value to the plaintiffs and their property, in affording a wide and pleasant prospect, and an abundance of pure air, and a situation on a public square, and increasing the uses to which the land of the plaintiffs may be put." And again it alleges that "said encroachments, if allowed to be completed and to remain, will be of special and irreparable injury to the plaintiffs and their said property, in that it will destroy the said public green, and be of great damage to their said land; diminishing its market value, and depriving the plaintiffs of all the advantages derived from having a frontage on the public square and green aforesaid."

The demurrer to these allegations requires us to assume them to be true, and to consider the case accordingly. We have, then, a case where it appears that the common in front of the plaintiffs' land and dwelling-house adds greatly to the beauty of the outlook from the house, and to the value of the property; and the question is, have the plaintiffs the right to an injunction to prevent the destruction of this enhanced value of their property, and of the enjoyment which the common affords to the inmates of their dwelling-house?

We fully agree with the counsel for the defendant that to entitle the plaintiffs to maintain this proceeding, they must show that the contemplated acts of the defendant, if committed, will be of special damage to them,—a damage in which the public will not share. Suppose the common in front of the plaintiffs' premises adds, for the reasons mentioned, $1,000 to their value, it follows that, if the common is destroyed, the plaintiffs will be injured to that extent in the diminished market value and diminished...