Williams v. Esling

• Decision Date: 15 February 1846
• Citation: 4 Pa. 486
• Parties: WILLIAMS <I>v.</I> ESLING.
• Court: Pennsylvania Supreme Court

4 Pa. 486

WILLIAMS v. ESLING.

Supreme Court of Pennsylvania.

January 25, 1846.

February 15, 1846.

Jan. 25.

IN error from the District Court for the city and county of Philadelphia.

J. W. Biddle, for plaintiff in error.—The court said there must be an actual interruption during a user, or whilst plaintiff wished to use the way, to entitle him to recover. We contend, a user alone by a stranger will sustain the action. If the declaration is right, and it lays the injury thus, there should have been a recovery, for the evidence supported it. The right is, to have the way clear at all times. Lawton v. Ward, Ld. Raym. 75; 1 Lutw. 111, with pleadings at large; Litt. Rep. 267; Lambert v. Hoke, 14 Johns. 383, support this; and a reason given is the additional expense in repairing, which is cast on the owner of the way, Taylor v. Whitehead, Doug. 745. An actual damage is not essential, Bower v. Hill, 1 Bing. N. C. 549, (27 E. C. L. R.) In Wright v. Freeman, 5 Har. & Johns. 475, the way had never been opened, so that a user was impossible, and of course a damage by interruption, and a recovery was had. The same rule is applied to commons, the possibility of a damage being held sufficient. Bullen v. Sheren, Godb. pl. 437. An adverse right would also be acquired by this user, which could not be prevented unless an action lies. Hobson v. Todd, 4 Term Rep. 71; Butman v. Hussey, 3 Fairf. 407; Williams v. Morland, 2 Barn. & Cress. 910, (9 E. C. L. R.;) Kirkham v. Sharp, 1 Whart. 323.

McIlvaine, contrà.—Had the plaintiff the right of soil, doubtless the action could be maintained without proof of actual damage; because every unauthorized entry is a damage, but a user of a way is no injury to the incorporeal right without an actual disturbance. It may have been, that we had a subsequent grant from the owner of the soil, which would be subject to the plaintiff's right. The adverse right could only be acquired against the owner of the soil. 9 Serg. & Rawle, 26; for all subsequent rights must attach subject to plaintiff's. The other rule would produce interminable litigation. That a damage must be shown appears in Woolrych on Ways, 247, 282; Noy, 120; Hart v. Basset, T. Jones, 156.

The same rule prevails as in the case of public ways, excepting as to the right of the owner of the soil. Chichester v. Lethbridge, Willes, 71; Lade v. Shepherd, 2 Stra. 1004. [ROGERS, J. — There is a difference; the one is property, the other a right, not the subject of grant.]

Williams was to have argued in reply, but the court declined hearing him.

Feb. 15. GIBSON, C. J

An action was maintained in Kirkham v. Sharp, 1 Whart. Rep. 333, by the grantee of a private way against the owner of the soil, standing in the place of the grantor; and avowedly without proof of special damage, or actual obstruction in any particular instance. The necessity of such proof was not even alleged. The difference between that case and this, is, that the action here is not, as it was there, against the owner of the soil, but against an intruder without any pretence of title whatever — a difference that will scarce be thought to be unfavourable to the present plaintiff. The English courts seem to have wavered as to the application of the principle to analogous cases; but the only thing like a conflicting authority in the case of a way, is the dictum in Woolrych on Ways, p. 283, that it is usual for the plaintiff to prove some damage from an obstruction of a private way, though to the smallest amount, merely to satisfy the jury that he has been unable, in consequence of the defendant's conduct, to use his right in so ample and beneficial a manner as he had been accustomed to do. But it is not said that proof of special damage is indispensable, or that it is the basis of the action. The case cited for the dictum, is Pindar v. Wadsworth, 2 East, 154, which, however, is the case of an action, not for obstructing a private way, but for injuring a common by taking away the manure dropt on it by the cattle; and the court certainly did say, that if the commoner, who sued for it, was not injured by it, he would not have a right to reparation; but it was also said, that the act was a necessary and an immediate damage. In no English case has there been raised a question about the necessity of special damage in an action like the present; but analogies from actions for surcharging a common bear strongly upon it. Hobson v. Todd, 4 Term Rep. 71, was such an action; and Mr. Justice Buller said, that the plaintiff was entitled to recover without proof of specific damage. ...