Wheeler v. Bedford

Park, C. J. This case presents the question whether the owner of a dwelling house and the land on which it stands, fronting on a town common or public park, its situation upon which greatly enhances its value, can maintain injunction proceedings against his neighbor, who seeks to destroy the common by enclosing a large part of it for his own use. Although in this case the intended appropriation is confined to a part only of the public ground, still the principles of equity that would restrain the attempted appropriation of the entire common would restrain the attempt to appropriate a substantial portion of it; for the injury to the plaintiffs in each case would be the same in kind, the difference being only in degree. The complaint alleges that the “public green or town common is of great and special value to the plaintiffs and their property in affording a wide and pleasant prospect, an abundance of pure air, and a situation on a public square, and increasing the uses to which the land of the plaintiffs may be put.” And again, it alleges that “ said encroachments, if allowed to be completed and to remain, will be of special and irreparable injury to the plaintiffs and their said property, in that it will destroy the said public green, and be of great damage to their said land, diminishing its market value, and depriving the plaintiffs of all the advantages derived from having a frontage on the public square and green aforesaid.” The demurrer to these allegations requires us to assume them to be true, and to consider the case accordingly. We have then a case where it appears that the common in front of the plaintiffs’ land and dwelling house adds greatly to the beauty of the outlook from the house and to the value of the property, and the question is, have the plaintiffs the right to an injunction to prevent the destruction of this enhanced value of their property, and of the — 248 — enjoyment which the common affords to the inmates of their dwelling house? We fully agree with the counsel for the defendant, that to entitle the plaintiffs to maintain this proceeding they must show that the contemplated acts of the defendant, if committed, will be of special damage to them,—a damage in which the public will not share. Suppose the common in front of the plaintiffs’ premises adds, for the reasons mentioned, one thousand dollars to their value. It follows that, if the common is destroyed, the plaintiffs will be injured to that extent in the diminished market value and diminished enjoyment of their property. But the public will not participate in that loss or be in any way affected by it. The plaintiffs’ right to maintain this suit is limited to the prevention of such loss as would be special and peculiar to themselves. Story, in his work on Equity Jurisprudence, § 927, in describing the cases where injunctions will be granted, among other things says :—“ Where privileges of a public nature, and yet beneficial to private estates, are secured to the -proprietors contiguous to public squares, or other places dedicated to public uses, the due enjoyment of them will be protected against encroachments by injunction.” High on Injunctions, § 551, says:—“ The right which it is sought to protect by injunction may result from a dedication of land to public uses, as well as from express grant or adverse possession. Thus where land has been dedicated to the use of the public as a public square, the owners of lots adjoining, who have purchased their lots and made improvements relying upon such dedication to public use, are entitled to the aid of equity to restrain the erection of private buildings on the square. Hor will the original proprietors who have dedicated land to be used as a public square, afterwards be allowed to appropriate it to their own private use. And an adjoining lot owner is a proper party complainant to a bill in equity to enjoin such appropriation. Such a complainant, being one of the inhabitants of the town, and holding property con — 249 — tiguous to the square, is not a mere volunteer assuming to protect the rights of others, but is injured in his individual rights, and is entitled to the aid of equity to protect his own interests.” If this can be said of public squares recently dedicated to public use, how much more strongly can it be said of squares that have existed for many generations, like the present one. See also Brown v. Manning, 6 Ohio, 298; Hills v. Miller, 3 Paige, 254; Corning v. Lowerre, 6 Johns. Ch., 439; Trustees of Watertown v. Cowen, 4 Paige, 510. But the defendant’s main defence against this proceeding is based upon the claim that the plaintiffs have adequate remedy at law, arising from the fact that ample provision for the removal of nuisances and encroachments from highways by the public authorities is made in the statutes of the state, and it is said that the plaintiffs can have redress by application to those authorities. But suppose the authorities are unwilling to institute proceedings. Where then will be the ample remedy? They are not bound to redress the plaintiffs’ private grievances. They act solely for the public, induced by public considerations, when they act at all. “ Adequate remedy at law ” means a remedy vested in the complainant, to which he may, at all times, resort, at his own option, fully and freely, without let or hindrance. This has been held many times by the Superior Court. We think the court below erred in adjudging the complaint to be insufficient. There is error in the judgment appealed from and it is reversed. In this opinion the other judges concurred.