Shephard v. Barnett

Gould, Associate Justice. The petition alleges plaintiff’sownership of a certain ten-acre lot in the city of Houston, bounded on the south by a public street known as Williams street, constituting an easement to his lot, and with a view to which, as an outlet therefrom, he had purchased said lot; that defendants, by erecting fences across the street, had obstructed it and prevented its free passage, and had thereby depreciated the value of plaintiff’s lot in the sum of $1,000. Plaintiff prays for judgment that the obstructions to the street be removed, and for $1,000 damages, and costs. The petition was excepted to generally, and there was also a special exception, to the effect that the petition showed a cause of action in the public, if in any person, and showed no cause of action in plaintiff; which exception was sustained and the cause dismissed. The petition is certainly quite meagre; but whilst it shows a public nuisance, it shows also that plaintiff has suffered special damages therefrom different from that jvhich is common to the public. The depreciation in value of his lot consequent on the obstruction of the street bounding the lot and leading thereto, constitutes such a particular injury to plaintiff as enti [641] ties him to redress; and this injury was sufficiently alleged, at least unless special exception was made for want of greater certainty in the averment. (Frink v. Lawrence, 20 Conn., 118; Francis v. Schoellkopf, 53 N. Y., 152; Stetson v. Faxon, 19 Pick., 147; Blanc v. Klumpke, 2 Cal., 156; Oswald v. Grenet, 22 Tex., 94; Wood on Nuisances, ch. 18.) [Opinion delivered February 27, 1880.] Because the court erred in sustaining exceptions to the petition, the judgment is reversed and the cause remanded. Reversed and remanded.