Panhandle Oul Co. v. Trigg

Cook, J., delivered the opinion of the court. In the chancery court of Wayne county, the appellee, W. S. Trigg, filed a bill of complaint agrainst the Panhandle Oil Company and J. H. Lawrence, its agent in charge of its business in Wayne county, and Ed- Reynolds, a citizen of the county, alleging, in substance, that in the year 1913 he was the owner of a large part of sections 9 and 16, township 17 north, range 7 west, in said county, on which the town of Clara is now situated; that in that year he had the said lands surveyed and platted into town lots and blocks, with streets designated and laid out between the said lots and blocks, and had a map thereof placed of record in the chancery clerk’s office of said county, and then dedicated the streets for public úse, as highways, by opening them up and selling lots fronting-on the same to divers individuals, retaining some lots for his own -use. It was further alleged that, among the streets so dedicated, one is known as the “Clara and Waynesboro Road;” that this street or road runs through and divides the business part of the said town of Clara, and was surveyed and platted tó be sixty feet wide through the business part of said town, and was opened *311 up sixty feet in 'width.; that this street or road has since been used and worked as a street and highway for that width; and that the complainant now owns some lots fronting on that street. It was further alleged that among the lots and blocks platted and heretofore sold by the complainant is lot 6 in block P, which has a frontage of sixty feet on said Clara and Waynesboro road; that in the latter part of the year 1926 the then owners of said lot 6' leased the same, with the buildings thereon, to the defendant, the Panhandle Oil Company, for a period of five years.; that the said oil company converted the same into a garage and filling station for gas and oil; that, instead of erecting an oil tank and roadway to the same, on the lot, it placed the same in the street a distance of some twelve to twenty feet beyond the front line of said lot, and covered the tank over and erected pillars in the street to support the covering, and thus appropriated a part of the street to its 'use in carrying on its business; that its action in so doing was without authority of law and in contravention of the rights of the public who use the said street, and was contrary to the purposes for which the street was dedicated by complainant, and is an attempt to deprive the complainant and the traveling public of the rights vested in them by reason of the said dedication, and by reason of the ownership of the fee in said land on the part of complainant. It was further alleged that the defendant Ed Reynolds had some interest in the lease of said lot, and was in possession of said lot and gasoline station, including that part in the street, and was exercising control over the same. The bill prayed for a decree requiring the defendants to move the said oil and gasoline station, pillars, and over hanging roof from the street, and prohibiting them from obstructing the said street, and for general relief. The bill of complaint does not allege that the complainant owns property abutting on the said Clara and Waynesboro road opposite block P, or that the alleged *312 obstruction in front of lot 6, block P, operates to deprive appellee of ingress or egress to and from Ms property, or interferes in any way with his light, ventilation, or' view, and there are no allegations of the bill from which the inference may'be drawn that the appellee ha,s sustained any peculiar or special damages on account of the alleged obstruction, or has suffered any injury or damage differing in kind from that suffered by the general public. To this bill, the defendants interposed a demurrer, setting up, among others, the following grounds: “ (1) The bill' does not show that complainant has or will suffer any peculiar or special injury not common to the general public by reason of the* alleged obstruction of the highway by the defendants. “(2j The bill shows on its face that the fee iii the highway at the point of the alleged obstruction is in; the owner' of the lot in question, and the bill does not show any right in complainant to/ maintain this suit. “ (3) ■ There is no equity on the face of the bill, and no facts stated entitling complainant to relief. “ (4) The bill does not show complainant has' any, standing in equity to maintain this suit. ’ ’ The demurrer was overruled, and from the decree overruling same this appeal was prosecuted. When the appellee platted the land into lots and blocks, with streets and alleys shown thereon, and sold lots with reference to this plat,' this was a dedication of the streets to the public use; and when he sold lots with reference to this plat, the purchasers acquired the fee of the abutting streets to the center thereof. Dillon on Municipal Corporations, sections 1076, 1083:, and 1084; Elliott on Roads and Streets, section 164; 18 C. J., p„ 1101; 29 C. J., p. '540'. The rule is well settled by the decisions' of this court, as well as the authorities generally, that an obstruction of an established highway is a public nuisance, and that •a private person cannot maintain an action to abate an *313 obstruction of a highway, unless such person has sustained some special damage or injury distinct or different in kind from that suffered by the public at large. In the case of Green v. Lake, 54 Miss. 540, 28 Am. Rep. 378, in discussing this question, the court said: “.To abate a public nuisance, the public authority must move. A private action, either at law or in equity, will not lie, unless the plaintiff has sustained some special damage [citing authorities]. The complainant must sustain a special or peculiar damage — an injury distinct from that done to the public at large. ’ ’ In Shoemaker v. Coleman, 94 Miss. 619, 47 So. 649, the court used the following language: “The learned counsel for appellant then contend that, if A street and seventh avenue were a street and avenue of the city of Meridian, and were obstructed, as the testimony shows they were, by appellant, such obstructions constituted a public nuisance, and that an action could not be maintained by appellee, a private citizen, to remove these obstructions, since he would have to show some damage peculiar to himself, not suffered in common by his fellow citizens. This is a perfectly sound principle of law.” The case of the City of Jackson v. Welch, 136 Miss. 223, 101 So. 361, involved a state of facts somewhat similar to the one here presented, and the court there said: “And, further, the Morrisons are not such abutting owners on Short street as gives them a special user for access purposes to their property as would specially damage them if it is closed up; but the injury they would suffer on account of closing the street is such damage as would be shared in by all of the public, which is a general interest or common easement, the deprivation of which would be suffered by the general public along with the Morrisons; and therefore the Morrisons cannot, as one of the general public, complain against the closing of the street. ’ ’ In 131R. C. L., p. 227, it is said that: “As in any other cases of public nuisances, a private individual has no *314 right of action, either at law or in equity, because of the obstructions of a street or highway, unless he suffers some peculiar or special injury not common to the general public. ’ ’ In 27 Am. and Eng. Enc. of Law, p. 162, the rule is stated in the following language: “A private individual, who receives special injuries from the obstruction of streets, such as an abutting owner whose easement of access, air, light, or view is obstructed, may maintain a suit to enjoin the obstruction, and it is not necessary that he first apply to the municipal authorities for relief or that he own the fee in the street. But to entitle an individual to enjoin the obstruction of a street he must receive some special injury therefrom differing in kind from that suffered by the general public.” The same doctrine is announced in Dillon on Municipal Corporations, par. 1132, in the following language: “ As to the right to relief in equity, it may be considered as settled that a party entitled to a right of way over a street may be protected in the enjoyment thereof by restraining the erection of obstructions thereon; but the mere allegation of irremediable mischief from the acts complained of is insufficient. Pacts must be stated to show that the apprehension of injury is well founded. The abutter must also show that he suffers special damage by the wrongful obstruction of the street, or by its diversion to uses other than those to which streets may legitimately be devoted. If the injury is only such as is sustained by the public in general, redress must be obtained by some proceeding in behalf of the public, and not by private and individual action. ’ ’ Elliott on Roads and Streets (3d Ed.), vol. 2, par. 850', says that: “In addition to the right of the public to maintain a suit in equity for an injunction, private citizens, who are specially injured by an obstruction and interested in preventing its continuance, may, upon a proper showing, *315 maintain a snit in equity for an injunction. But, unless a special injury is shown, the plaintiff will not he entitled to an injunction. ’ ’ While in paragraph 850a of this work the rules covering this subject are stated as follows: “The unlawful obstruction of a highway is a public nuisance, that may be redressed1 by appropriate judicial proceedings at the instance of proper governmental authorities. In order to secure an efficient administration of the law for the benefit of the public, and to avoid multiplicity of suits to accomplish one purpose, public wrongs are redressed at the suit of proper officials, and individuals are not permitted to maintain separate actions or suits to redress a wrong that is public in its nature, unless the individual suffers or is threatened with some special, particular, or peculiar injury growing out of the public wrong. If the nuisance causes special or peculiar injury to an individual, different in kind, and not merely in degree, from the injury to the public at large, and the injury is substantial in its nature, the individual may have his civil remedy. If the remedy at law is inadequate, equity will afford appropriate relief. Where an unlawful obstruction of a public highway merely affects injuriously an individual’s right in common with the public to pass over the highway, the individual suffers no injury different in kind from the public, and has no private right of action.” Since there is no allegation in the bill of complaint that the appellee has sustained any peculiar or special damage on account of the alleged obstruction, or has suffered any injury or damage differing in kind from that suffered by the general public, we think the demurrer to the bill should have been sustained. The decree of the court below will therefore be reversed, the demurrer sustained, and the cause remanded, with permission to the complainant to amend his bill within thirty days after receipt of the mandate of this court in the court below. Reversed and remanded.