A. C. Conn Co. v. Little Suamico Lumber & Manufacturing Co.

Tayioe, J. The only question to be determined on this appeal is whether the complaint states a cause of action. It [586] is not claimed by the learned counsel for the respondents that the complaint does not show an unlawful obstruction of the stream mentioned in the complaint, but it is claimed that the facts stated do not show that the plaintiff has suffered any damage from such obstruction peculiar to itself, and for which it is entitled to recover. That a party may recover for damage to himself, his property, or business, resulting from a public nuisance, is now too well settled to need discussion, and is not questioned by the learned counsel in this case. The only qualification is that the damage must not be such as the public in general suffer by reason thereof. Wood, in his work on the law of Nuisance, p. 672, § 642, says: “ To illustrate, we will take the case of a slaughter-house erected upon a public street.” “ To all who come within the sphere of its effects it is a nuisance, and offends the senses by its noxious smells. It is a common nuisance in such locality, and in its general effects produces a common injury. But to those living upon the street, and within its immediate sphere, it is both a common and a private nuisance; common in its general effects, but private in its special effects upon those living there. To the public generally it produces no injury except such as is common to all; but to those owning property in its neighborhood or residing there it produces a special injury, in that it detracts from the enjoyment of their habitations, produces intolerable physical discomfort, and diminishes the value of their premises for the purposes to which they are devoted.” There can be no doubt but that the allegations in the complaint show that the obstructions placed in the river by the defendants are of such a character as must necessarily be injurious to the business of the plaintiff, if, in order to carry it on, it must float its logs down the river and over the obstructions placed therein by the defendants. It therefore brings itself within the rule above laid down. But it is insisted by the learned counsel for the respondent that the complaint [587] does not show that the plaintiff did in fact operate its mill, and float its logs down the obstructed river to the same, at any time before the commencement of this action, and does not, therefore, show that up to that time it had suffered any damages from such obstructions which were not equally suffered by every other citizen. ¥e think this construction of the allegations of the complaint is a very strict construction against the plaintiff, and ought not to be given to it upon an objection first taken on the trial, and after an answer had been served in the case. The argument to sustain this construction is based upon the fact that the plaintiff, in alleging its injuries, alleges them only in the present tense. It is said, because it alleges that its logs in coming down the stream wre continuaTkj delayed by said obstructions, it does not show that they were so delayed before its action was commenced, and so does not show any injury sustained before that time. But it will be seen that the plaintiff, immediately after alleging that such obstructions continually delayed its logs in coming down said stream, further alleges that by reason of said wrongful acts of defendants, and the maintenance of said obstructions in said stream by them, it has been damaged during the years of 1878 and 1879 to the amount of $5,000. In the first part of its complaint it has alleged that for many years last past, and during all the time hereinafter mentioned, it has been the owner of a large saw-mill situated on said river, and that the only practicable way in which it can procure pine saw-logs for manufacture into lumber at its said mill is to cut them from lands several miles distant from said mill, put them into said river, and float them down said river to said mill. It is true that in all these allegations the present time is used, and there are no express allegations that during that time it did float logs down said river to its mill for manufacture there, and that such logs so floated down were delayed by the obstructions to its damage. We think, under the liberal rule for the construction of a [588] complaint, where objection to its sufficiency is made for the first time on the trial, the plaintiff’s allegations should be construed to cover the time mentioned as the time during which it suffered damage, to wit, during the years 1818 and 1819, and should not be restricted to the time when its complaint was made. The allegation that its logs, in coming down said stream, are continually delayed by such obstructions, should be construed to moan that they were delayed in the years mentioned as the time when it sustained damage. Under the allegations of the complaint, the plaintiff upon the trial should have been permitted to show that it had logs in the river in 1878 and 1879, and that they were delayed by the obstructions, to its damage. Such proofs would not have been objectionable on the ground of variance. Lounsbury v. Purdy, 18 N. Y., 515-520; White v. Spencer, 14 N. Y., 247; Cady v. Allen, 22 Barb., 388; St. John v. Northrup, 23 Barb., 25; Hazelton v. Union Bank, 32 Wis., 34; Schmidt v. Pfeil, 24 Wis., 452; Grannis v. Hooker, 29 Wis., 65; Teetshorn v. Hull, 30 Wis., 162; Lutheran Ev. Church v. Gristgau, 34 Wis., 328; Johnson v. Lumber Co., 45 Wis., 119, 120; Johannes, County Judge v. Youngs, id., 445; Delaplaine v. Turnley, 44 Wis., 43. The allegation that the mill of the plaintiff was frequently compelled to be idle for want of logs, on account of the delay in passing the obstructions, connected with the other allegation that it was damaged by such obstructions to the amount of $5,000, is sufficient to show that the plaintiff was damaged in its business of operating' its mill, and so shows an injury and damage which entitles it to maintain its action. The fact that the allegations as to damage are general and indefinite, is not a ground of demurrer, but must be remedied if desired by a motion on the part of the defendant to make them more definite and certain. We think the plaintiff should have been allowed to introduce its evidence on the trial, notwithstanding the defects in the complaint pointed out by the learned counsel for the re [589] spondent, and that the court erred in dismissing the complaint, and entering judgment for the defendant. By the Oourt.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.