Enos v. Hamilton

Dixon, C. J. If the obstruction of the river so that it could not he navigated was lawful, and continued only for°a reasonable length of time, according to the [259] course of navigation, or if it was made necessary by reason of misfortune or inevitable accident, and without fault on tbe part of the defendants, these were matters properly coming from the defense, and which need not be negatived by the complaint. The obstruction of the navigation, as charged in the complaint, for a period of six weeks, at a season of the year when the river should have been otherwise free and open, must be presumed to have been unlawful and unreasonable. The other question presented, whether, upon the facts stated in the complaint and the evidence offered at the trial, a case of special or peculiar damage to the plaintiff was shown or proposed to be, so as to enable him to maintain his action, is one possibly of more difficulty, though to our minds it seems quite plain and clear. The general principle that no action can be maintained by an individual for a wrong thus suffered or damage sustained by him in common with other members of the community, but that the remedy is by public prosecution or suit, in the name of some one officially authorized to vindicate the rights of the public, is of course well understood. It was recognized and acted upon by this court in Carpenter v. Mann, 17 Wis. 155. On the other hand, the other principle or rule, that where particular or special damage is shown, the action may be maintained, is equally well settled, and the only difficulty about it arises from its application to the particular case. Counsel for the defendants cites Blood v. Railroad Corporation, 2 Gray, 137, and quotes the language of the court in Smith v. City of Boston, 7 Cush. 254; in Brainard v. Conn River R. R. Co., id. 506; and in Holmes v. Townsend, 13 Met. 297. There may be something in the language of some of those cases, and especially in that of Chief Justice Shaw in the last one, which, broadly applied, tends to sustain the position that no special or peculiar damage was averred or offered to be proved here. The case [260] last referred to, and in •which Chief Justice Shaw was speaking, is the only one the facts of which bear any resemblance to those of the case we are now considering. In that case the plaintiff averred that by reason of the obstruction and incumbrance with snow and ice, he was prevented from traveling the highway, with his horses, cattle, teams, and on foot, etc., which was clearly an injury common to the entire community. He also averred that he was prevented from hauling and sledding a great quantity of logs and timber to a saw mill to be sawed, and from working on his wood lot and about his logs and wood, but he averred no special or particular damage or loss because of his having been so prevented. The rule governing the case was therefore clear, and the language of the court in that and the other cases must be construed with reference to the facts and nature of the case before it. But in that case we are referred by the learned chief justice to the case of Stetson v. Faxon, 19 Pick. 147, as one in which the distinction is well stated between special and peculiar damage which will sustain a private action, and that damage common to all the public which will not, and in which the authorities are reviewed. An examination of the latter case will, we think, prove quite satisfactory upon the question here presented. It establishes beyond doubt, so far as it can be established by authority, that this is a case of special damage. Many of the cases reviewed, both English and American, in which the action has been maintained, were as like this in all their facts and circumstances as different actions depending upon the same principle well can be. By the Court. — Judgment reversed, and a venire de novo awarded.