Clark v. Chicago & Northwestern Railway Co.

Lyon, J. One who sustains special damage peculiar to himself, either in person or in property, from a public nuisance, whether such damage be direct or consequential, may recover the same of the person or corporation creating or maintaining such nuisance. But it is essential to a recovery in such case that the plaintiff prove the damages are special to himself; that is, that they result from an injury of a different character from the injury suffered by the rest of the public, and not a part of the common injury caused by the nuisance. “It is not enough,” says Mr. Wood, in his treatise on Nuisance, “that he has sustained more damage than another; it must be of a different character, special and apart from that which the public in general sustains, and not such as is common to every person who exercises the right that is injured.” The above proposition is well-settled law. See Wood on Nuis. § 646, and cases cited in notes. It is sometimes difficult to determine, under the above rule, whether an alleged injury to an individual, caused by [598] a common nuisance, is or is not of a kind that gives him a private action to recover damages therefor. To aid in determining that question, olher rules have been laid down by the courts and text -writers, one of -which is that a distinction must be made between actual present damages and those which rest in contemplation. While in a proper case the former may be recovered in a private action, the latter cannot. Wood on Nnis. § 659. A man may desire to do any given thing, and may be able to show that he would have saved a certain sum of money could he have performed the desired act. In one sense he has suffered damage because of such inability. This, however, is purely contemplative damage. But when he endeavors to do an act and fails, and suffers loss thereby, 1 his may be actual, present damage, within the above rule. Under this rule, a mere obstruction to a highway on which a person desires to travel, but who makes no attempt to do so, although it exposes him to inconvenience and loss, is not ground for a private action for damages. Such damages rest in contemplation, within the meaning of the rule. It is believed that every case in this court in which private actions for damages resulting from common nuisances, or for injunctions to restrain their erection, have been sustained, comes fairly within the rule first above stated, and that none of them trench upon the rule last stated; that is to say, in each case actual, present damages, special and peculiar, to the plaintiff, were proved. Thus the alleged nuisance in Walker v. Shepardson, 2 Wis. 384, greatly impaired the value and lawful use by the complainant of his wharf. In Barnes v. Racine, 4 Wis. 454, it interfered with the convenient use of the plaintiff’s lots, wharfs, ship-yards, and mills, and impaired their value. In Williams v. Smith, 22 Wis. 594, it cut off (or would have done so) the only way of access to the premises of plaintiffs. In Enos v. Hamilton, 27 Wis. 256, it shut off access to plaintiff’s mill, and de [599] prived him of the use thereof, and prevented him from seasonably stocking it for future work. In Wis. River Imp. Co. v. Lyons, 30 Wis. 61, it caused a loss to the plaintiff of $600 in tolls. In Greene v. Nunnemacher, 36 Wis. 50, it drove customers from the plaintiff’s saloon and tavern, diminished his profits, and injured the health of himself and family. And in Gates v. N. P. R. Co. 64 Wis. 64, it stopped or delayed the boats and rafts of the plaintiff in their actual passage down a navigable river, to his great damage. The complaint in this action contains no averments bringing it within either of the above cases, nor, it is believed, within any other case ever decided by this court. The complaint herein alleges that the plaintiff owns a steam-yacht, upon which he desires to travel daily and carry passengers between N'eenah and Appleton; that in his business of a manufacturer he is largely interested in transporting-freight up and down the Fox river, past the point where .defendant’s bridge is located, and would transport such freight by river but for the bridge; but now, boat, passengers, and freight have to take a circuitous route by reason of the bridge. The complaint fails to state where the plaintiff’s business is carried on, or that he owns any property affected by the alleged nuisance, or that he has ever made any attempt to pass the bridge, or that he has any riparian rights affected by it. The whole substance of the complaint is that the plaintiff desires to navigate the Fox river where the bridge stands, with his yacht, and to transport passengers and freight up and down the river at that point, but cannot do so because of the bridge, and is compelled to take a longer route to reach desired points. If there is any element of special damage alleged in the complaint — damage not suffered by the whole public who navigate or may desire to navigate Fox river between the same points — we have failed to discover it. Moreover, the damages alleged rest entirely in contemplation, within the rule above stated. See note to this case in 36 N. W. Rep. 339.— Rep. We are satisfied that the complaint fails to state a cause of action for private damages, and hence that the circhit court properly sustained the demurrer thereto. By the Court.— Order affirmed.