Farmers Co-Operative Manufacturing Co. v. Albemarle & Raleigh Railroad

Avery, J.: The most interesting question presented by this appeal is whether the plaintiff in any aspect of the evidence has shown such special damage as would entitle him to redress by civil action for a public nuisance. The law provides an adequate remedy for the wrong to the public and thereby prevents a multiplicity of vexatious private actions. But in order to the maintenance of a civil action by an individual, in addition to the indictment by the State, it is not made incumbent on him to show an injury from which he is the sole or even a peculiar sufferer. The damage recoverable in a civil action founded upon the obstruction of a public highway must however be such as is not common to every one who actually does pass or may travel over the highway. It must be unusual or extraordinary but not necessarily singular. While the wrong must be special, as contradis-tin- *587 guished from a grievance common to the whole public, who have the right to use the highway, it may nevertheless be the common misfortune of a number or even a class of persons and give to each a right of redress. The amounts of damage recoverable by them may vary according to the extent of the loss shown in each case, but every one of them may maintain his status in court by alleging and proving precisely the same sort of wrong caused by the same obstruction. For instance, in the familiar case of the plaintiff who was injured by falling into a ditch dug by another across the public highway, referred to by the elementary writers and the courts to illustrate the principle upon which civil actions are maintainable in such cases, it would not have impaired the right of the first man who suffered from falling into it, if a dozen of his neighbors had tumbled into it afterwards on the same day and had received more serious injury than he. So in Downs v. City of High Point, 115 N. C., 182, where the municipality created a public nuisance by negligence in allowing a sewerage ditch to discharge its contents in a place wheré the nauseous smell annoyed the whole public, but gave to the plaintiff a right of action because of his sickness and that of members of his family, due solely to the disagreeable odors, it would have been none the less competent for him to claim the right to show special damages, or such as wasnot common to the wholepublic, becauseit appeared that other families in the vicinity and on all sides of the defective ditch had suffered in a similar way and claimed like redress in the courts. Bishop, in his work on non-contract law, section 424, by way of illustrating the principle we are discussing says : “So, likewise, it is a nuisance to obstruct a navigable stream ; therefore, if one is by such obstruction prevented from fulfilling his contract, he can maintain a civil suit *588 against tbe obstructor.” The first authority cited to sustain the author’s view was Dudley v. Kennedy, 63 Me., 4-65, where the facts were that the plaintiff, who had engaged to transport rocks and gravel in boats on the Kennebec river, which is a navigable stream, was prevented from carrying out his contract by a boom placed across the river between the point at which the rock and gravel were procured and the point of delivery, and the court held that the defendant was liable in a civil action for special damage. Though few of them are so directly in point as the case just cited, there is no dearth of authorities in which the general principle, as we have formulated it, is so fully sustained as to make its application to the case at bar obvious and the deduction inevitable. Guesley v. Codling, 2 Bingham (9 English Com Law) 4:07; Chichester v. Lithoridge, Nile’s reports (C. PI.) 70, 74; Hughes v. Heiser, 2 Am. Dec., 459 (1 Binney) 463; Rose v. Miles, 2 M. & S., 101; Burroughs v. Pixley, 1 Am. Dec., 56 (1 Root 362.) It is not material whether this particular boat was licensed or whether other individuals owned boats that were engaged in navigating the river. If the plaintiff suffered damage common to a class whose business required the transporation of material for manfacturing purposes from a point below the obstruction to a plant located above it, but not common to the whole public, his right is not impaired by the fact that the boat was doing business as a common carrier as well as for the manufacturers who owned it. The case of Dunn v. Stove, 2 Car. Law Rep., 241, falls far short of sustaining the defendant’s contention. There, the plaintiff claimed special damage because a dam placed by the defendant across the stream below the plaintiff’s riparian possessions' obstructed the passage of fish, and. prevented the plaintiff from catching and *589 using them. The court seem to have rested the decision entirely upon the ground that the fish were not the property of the plaintiff but were subject to become the property of any person living on the stream upon reclaiming them. Chief Justice Tayloe delivering the opinion said: “But what property could plaintiff have in the fish in their wild state, before they ascended to the water flowing over his land ? In animals ferae naturae a man may have a qualified property which continues only while the/ are in his possession or under his control ; and so long they are under the protection of the law. But the defendant has the same extent of ownership in them, in virtue of which he might have caught them in his own waters and thus have done an equal injury to the plaintiff’s fishery.” The cotton seed which the plaintiff was transporting up the river "was its property and was in a boat, which was private property, and'was entitled iinder the protection of the law to pass over the highway without obstruction* and damage growing out of detention. We understand the court to broadly intimate that, had the injury complained of in Dunn v. Stove, supra, grown out of the detention of property instead offish by. the obstruction, a different principle would have applied. Though any and every person had the right to transport goods and chattels along the river, just as the whole public might have enjoyed the use of the highway which was traversed by the ditch, a right of action accrued only to those who attempted to avail themselves of this privilege, and suffered by the detention of goods in the one case and from injury to their persons or property in the other. Rose v. Miles, supra. “Navigable waters'in elude all those which afford a channel for useful commerce. Such waters are public highways of common right.” 16 Am. & Eng. Enc., 236. “It is not necessary that such waters be fit-for navigation at all *590 times, but tbeir capacity therefor must recur with regularity.” 16 Am. & Eng. Enc., 243, note 1; Commissioners v. Lumber Co., 116 N. C., 731. Upon the testimony, which was not controverted, the defendant clearly had no cause to complain of the instruction which left the question of navigability to the jury under the foregoing rule. We are of opinion, however, that the court erred in allowin’g the jury to consider the cost of loading and unloading the cotton, and of damage to the cotton seed by exposure after they were unloaded. The damage to the cotton seed was caused directly by leaving them exposed, not by the obstruction. If they had been kept in the boat or stored in a well-constructed warehouse, they would have remained uninjured after being detained with the boat for want of a draw in the bridge. The plaintiff was clearly entitled, as damages, to the reasonable worth of the boat for such time as it was-detained by the obstruction ; and, in determining what the boat'was worth, it was competent to consider wages, if reasonable, paid to the hands, as the value of its services were to some extent dependent upon the cost of the crew. Guesley v. Codling, supra. If the plaintiff during the period of detention had provided other means of transporting the cotton seed around the bridge to the mill above, the rule would have been the same as that applicable to detained passengers (Hansley v. Railroad, 115 N. C., at page 609, and the authorities there cited), and the, reasonable cost , of carrying them by another route might have become an element of the damage assessed. In the case of Rosev. Miles, supra,, Lord Ellenborough said : “He (the plaintiff) has been impeded in his progress by the defendants wrongfully moving their barge across and has been compelled to unload and carry his goods over land, by which he has *591 incurred expense, and that expense is caused by the act of the defendants. If a man’s time or his money is of any value, it seems to me that this plaintiff has shown a particular damage.” Bayley, J., said that the plaintiff had placed the defendant in a situation that he unavoidably must incur expense in order to carry his goods another way, while Damper, J., said “The expense was incurred by the immediate aet of the defendant, for the plaintiff was forced to unload his goods and carry them overland. If this is not a particular damage, I scarcely know what it is.” Chichester v. Lithbridge, supra. But the plaintiff, instead of procuring another conveyance for the cotton seed, left them exposed, so that they were injured. The measure of damage, therefore, was the reasonable cost of the boat, which was in the employment of the plaintiff during the period of detention. It is true that, upon a familiar principle, the defendant might have claimed a deduction from the aggregate value of its services during such time, of any sum which the boat and crew actually earned, but-no evidence of that nature was introduced. Hassard-Short v. Hardison, 114 N. C., at page 482. A different case might have been presented if the plaintiff had been transporting a cargo to a market above and had lost the advantage of the market. Dudley v. Kennedy, supra, but the gravamen of the complaint here is the cost incurred by detaining the boat. See Guesley v. Codling, supra. We conclude, therefore, that there was error in the instruction given as to the proper measure oí damage, while there was no error in the other rulings complained of, and a new trial will be awarded only upon the question of the amount of damage which the plaintiff is entitled to recover. Tillett v. Railroad, 115 N. C., 662. New trial as to damage. New Trial.