Shed v. Hawthorne

Gantt, J. This is an action by petition praying for an injunction perpetually enjoining the defendants from obstructing a county road and bridge, situated in Fremont Precinct, Dodge county, and from demanding and taking toll for crossing said bridge. To the petition the defendants interposed a general demurrer, which was sustained, and it is now assigned for error that the court erred: Fi/rst. In sustaining the demurrer to the plaintiffs’ petition, and Second. In rendering judgment for the defendants. Several questions were urged on the argument as reasons for the reversal of the judgment, but the conclusion at [185] which we have arrived, renders it unnecessary to examine more than one of these grounds. The allegations of the plaintiffs’ petition substantially are, that the defendants have obstructed and continue the obstruction of a public highway, by the erection of a tollgate and the demanding and, taking of toll for crossing on the bridge on said highway. If, as alleged, this road is a public highway, then travel over it is a common right to the public, and therefore it must be clear that the obstruction complained of is a, public nuisance, for it affects all alike who may have occasion to pass over the highway. In Lansing v. Smith, 8 Cow., 152, it is said that “ a ditch dug in a public highway, which from the lqcal circumstances of the country, is seldom or ever used but by one or more families, is still a public nwisance, not because any considerable portion of the public is injured by it, but because it obstructs a passage which all have a right to use.” And it is an ancient rule of law, that no action lies for a public nuisance, but by indictment only, because the damage being common to the public, no one can assign his particular portion of it; and the only exception to this rule is where the private person suffers some extraordinary damage, distinct from that suffered by the public at large. In the case at bar, the petition shows that the same injury which has resulted or may result to the plaintiffs, by reason of the obstruction, must necessarily in like manner and degree result to the public at large. 3 Black. Com., 219. Bigelow v. Hartford Bridge Co., 14 Conn., 577. O'Brien v. Norwich and Worcester Railroad Co., 17 Id., 375. Moses v. Pittsburg and Fort Wayne R. R. Co., 21 Ill., 522. In accordance with these long and well settled principles of law, it seems to be well established, that a bill in [186] equity will not be entertained for an injunction to remove or abate a public nuisance, or to enjoin an obstruction which constitutes such nuisance, unless it be clearly shown that the plaintiff does and will sustain a special damage, a personal injury distinct from that done to the public at large; and it being clearly shown that the plaintiffs in this case cannot suffer any injury which is distinct from that which must necessarily result tothepublie, the judgment must be affirmed. Judgment affirmed. Chief Justice Lake concurs.