Reyburn v. Sawyer

Montgomery, J. The referee’s conclusions of law upon the facts found by him that the action of the defendant in the placing of pound nets in the manner in which they were set constituted a public nuisance was a correct one. State v. Club, 100 N. C., 477, 6 Am. St. Rep., 618. To prevent a multiplicity of private actions, the laAV provides a remedy for public nuisances in the Avay of an indictment, by Aidiich the nuisance can be abated or the offender punished by fine or imprisonment, or in both ways. The plaintiff in this action, hoAvever, alleges in his complaint that he has suffered, and further that he has shoAvn by the proof that he has suffered, an unusual and special damage on account of the erection of the nuisance by the defendant, and that he therefore is entitled to redress by a civil action, that is, to have the nuisance abated at his own suit. The plaintiff’s contention rests upon a sound principle of law, and Avhere the facts go to show that a public nuisance has been the cause of unusual and special damage to an individual or a class of persons, as contradistinguished from a grievance common to the public, that person may bring a civil action for the redress of the injury. In Mfg. Co., v. Railroad, 117 N. C., 579, 53 Am. St. Rep., 606, the defendant, by erecting a bridge across a river so low as to obstruct the passage of boats plying up and down the stream, thereby prevented a steam-boat from carrying a cargo of merchandise for a consignee up the river and beyond the bridge. The Court held that the defendant Avas liable in damages for the injury done to the plaintiff, on the ground that the damage Avas special and unusual to the plaintiff. The Court said there: “It is not material Avhether this particular boat Avas licensed, or Avhether other individuals oAA'ned boats that Avere. engaged in navigating the river. If the plaintiff suffered damage common to a class whose business required the transportation of material for manufacturing purposes from — 337 — a point below the obstruction to a place located above it, biit not common to the whole public, his right is not impaired by the fact that the boat was doing business as a common carrier, as well as for the manufacturer who owned it.” The same principle was announced in Downs v. High Point, 115 N. C., 182. It is a principle of law found stated in all of the text writers on the subject of nuisance and in the decisions of many of the courts of the States. If the facts be such as the plaintiff claims he has shown them to be in this action, his right to relief by a civil action appears to be clearer in principle and more necessary to the peace and order of society than were the plaintiff’s rights in the cases we have cited. The plaintiff here is the owner of a tract of land (Durant’s Island) situated in the midst of navigable waters, and it is necessary to the full and free enjoyment of his property that his access over the waters to that property and his egress from it should not be obstructed by nuisances erected athwart the channels of approach. The claim of the plaintiff is, that not only was the erection of the fish nets, in the manner in which they were constructed by the defendant, a public nuisance, but that it prevented the free use and enjoyment of his private property, which was a damage and an injury to himself, not in common with the public at large, but as extraordinary and special in its effects upon him. In Blanc v. Plumple, 29 Cal., 156, the Court said: “Undoubtedly if the obstructions only affect the plaintiff in common with the public at large, although in a greater degree, he cannot have his private action; but if he is thereby obstructed in the free use of his property, and its comfortable enjoyment by him is thereby interfered with, and to some extent prevented, can it be said he suffers in common only with the public at large? Anything which is injurious to health, or indecent or offensive to the senses, or an obstruction to the — 338 — free use of property, so as to interfere with the comfortable enjoyment of life or property, is declared, to be a nuisance and the subject of an action, and it is further provided that such action may be brought by a person whose property is injuriously affected. In Wilder v. DeCon, 26 Minn., 10, the Court decided that the owner of a town lot suffers a peculiar damage by the obstruction of a portion of a public street immediately in front of his lot, and that he might therefore maintain an action to prevent such obstruction, although the same may be a public nuisance. In Rex v. Dewsnap, 16 East., 196, Lord Ellenborough said: “I did not expect that it would have been disputed at this day, though a nuisance may be public, yet that there may be a special grievance, arising out of the common cause of injury, which presses more upon particular individuals than upon others not so immediately within the influences of it. In the case of stopping a common highway, which may affect all the subjects, yet if any person sustains a special injury from it he has an action. This must necessarily be a special grievance to those who live within the direct influence of the nuisance and are therefore parties aggrieved within the statute allowing such parties costs.” In Wood on Nuisances, pages 886, 887, it,is said: “Redress may be had through the medium of a private action in behalf of each j>erson specially injured, although the same damage is inflicted upon many persons at one and the same time, as an obstruction of a highway leading to one’s premises, or so as to obstruct access thereto, or otherwise producing special damiage; the obstruction of a navigable stream so as to hinder or delay passage over the same, or producing actual damage to vessels, or by cutting off the approach to a private wharf or premises so as to injure one’s premises, is such a special injury as enables the person so injured to maintain an action.” In Park v. Railroad, 43 Iowa, 636, a correct sylla — 339 — bus of tbe decision may be stated as follows: “Injuries resulting from the obstruction of highways leading to the premises of the party complaining and interfering with access to them are proper grounds of recovery by the injured party, and this is so although many others sustain similar injuries from the same cause.” And we are of the opinion that one who suffers damage, through the erection of a public nuisance, unusual and special to himself, is not confined in his remedy to an action merely for damages, espeéially where the damage arises from an injury and obstruction to the free use and enjoyment of one’s property — lands and tenements, as in this casein 2 Wood on Nuisances, page 1159, the author says: “Any person injuriously affected by a nuisance, who could maintain an action at law therefor, can maintain a bill in equity for an injunction.” And Barnes v. Hatthorn, 54 Mo., 127; Thebaut v. Conova, 11 Fla., 143; Peck v. Elder, 3 Sandf. (N. Y.), 126; Danner v. Valentine, 5 Metc., 8, are cited in support of the text. Indeed, in a case like the present, it would be impossible to fix with any degree of certainty the damages which the plaintiff ought to recover for the obstruction of his access to his property; and this Court has said in Jolly v. Brady, 127 N. C., 142: “But when the damage cannot be reasonably compensated in a suit at law, or the injury is irreparable, the Court will stay the injury by injunctive order until the parties shall have the main facts determined by a jury.” In Wood on Nuisances, page 119, it is said that “When the injury is not susceptible of adequate compensation in damages, or where the injury is a constantly recurring grievance, a court of equity will interpose by injunction.” In Works v. Railroad, 5 McLean, 525, the Court said: “If such injury exists, no adequate remedy can be found by an action at law. From the nature of the injury its extent cannot be ascertained with — 340 — precision. It is permanent; consequently the suits at law for redress must be endless. In such case adequate relief can be given only by injunction. It prevents the wrong. To establish this wrong it need not be measured by dollars and cents. It must be shown to exist; it must be material, but the particular amount of damage need not be shown.” But, besides, in this case it appears that if damages could be made a sufficient compensation for the injury done to the jffaintiff, a recovery would be of no avail on account of the insolvency of the defendant, and the injury would therefore be irreparable. In 1 Beach on Injunction, section 34, it is said: “A court of equity in the exercise of its discretion may grant an injunction to prevent a breach or an injury for which there can be no other redress on account of the defendant’s insolvency”; and in Kerlin v. West, 4 N. J. Eq., 449, it was declared that an injury may be irreparable, either from its nature or the want of responsibility in the person committing it. 10 Ency. Pl. & Pr., page 956. So far we have considered this case on the theory that the referee had found the facts as the plaintiff insisted they should have been found from the evidence. The referee, however, found as a fact that “none of the boats of the plaintiff, his servants or agents, had been delayed or obstructed in any passage which they have undertaken, or had been compelled to change their course, or been damaged on account of the stakes or nets of this defendant, and the plaintiff and his servants or agents have not been prevented from taking any passage on the water on account of the nets of the defendant.” If there had been no other finding of fact by the referee on the subject of the obstruction of the plaintiff’s access to his premises, the judgment of the Court below upon the referee’s report would have to be affirmed. But there was another finding of fact on that subject, and one totally inconsistent with the finding which 'we have quoted — 341 — above, wbieb will result in a reversal of the legal conclusion upon those findings. The inconsistent finding of fact referred to is in these words: “In October, 1900 or 1901, B. G. Crisp, who is the attorney and representative of the plaintiff in Dare County, went from Manteo to Durant’s Island to see the plaintiff about a matter of business, expecting to return the next day. During the night the wind came on to blow very hard from the northwardly, and continued to blow very hard for two days. The waves were breaking over the reef to such an extent that the boatmen who carried Crisp to the Island would not cross the reef. Owing to the rough water on the reef and the difficulty in crossing the reef with the breakers on it and the stakes in the channel, the boatmen were afraid to venture out, and Crisp did not leave for two days. No attempt was made to start.” We are of the opinion that upon that finding of fact the Court should have given judgment that the plaintiff should have his injunction for the abatement of the nuisance. Error. Douglas, J\, concurs in result only.