Holman v. Inhabitants of Townsend

Shaw, C. J. The court are clearly of opinion that this action cannot be maintained on the Rev. Sts. c. 25, § 22. They give a remedy to any one who has received “ any injury in his person or property by reason of any defect, or want of repair.” The construction, which has been put on this provision, and which we consider a just one, is, that it must be a damage sustained in using the road, and also in using it with due care and skill. Tisdale v. Inhabitauts of Norton, 8 Met. 388. Adams v. Inhabitants of Carlisle, 21 Pick. 146. The special damage, for which this statute gives a remedy, must be one of which the defect in the highway is the direct and proximate cause. That damage, which a party sustains, in consequence of not being able to use a highway, is one which he sustains, in common with all the rest of the community, from the failure of the town to perform a public duty, and can be properly redressed only by a public prosecution. Were it otherwise, every individual in the town or the adjoining towns, who owns a team or carriage, and would occasionally find it convenient to use the road, would have a separate action. Co. Lit. 56 a. 3 Mod. 294. 3 Wooddeson, 190. Even in an action at common law, where one sues to recover special damage, for an injury sustained by an obstruction in a highway, it must be shown that his damage is special, and peculiar in kind, as by driving against a log ; Fowler v. Sanders, Cro. Jac. 446; or falling into a ditch, Co. Lit 56 a. Carth. 194. The damage arising from being [300] unable to use the way, being common to all the public, is not the ground of a private action. The distinction is well stated, and the authorities are reviewed, in the case of Stetson v. Faxon, 19 Pick. 147. But an action at common law will not lie against a town : and, to recover damage, a party must bring his case within the statute. Mower v. Inhabitants of Leicester, 9 Mass. 247. Judgment, on the demurrer, for the defendants.