Houck v. Wachter

Bartol, C. J., delivered the opinion of the Court. This suit was brought by the appellee to recover damages for the alleged obstruction of a highway by the appellant. The first question presented by the record, and one which, in the opinion of a majority of this Court, is decisive of the case, arises upon the demurrer to the amended declaration. The ground of the demurrer is that the declaration does not contain any sufficient averment of special and particular damage suffered by the plaintiff from the obstruction complained of, to support the action. The obstruction of a highway is a common nuisance, and being a wrong of a public nature, the remedy is by indictment; it is not in itself a ground of civil action by an individual, unless he has suffered from it some special and particular damage, which is not experienced in common with other citizens. 9 Md., 178. In such case, the actual damage constitutes the gist of the action, and must be averred and proved. These principles are well settled, and the only difficulty that can arise, grows out of their application to particular cases. With respect to what constitutes such special and particular — 270 — damage, the decisions do not appeal1 to have been entirely harmonious. We think, howevei1, the present case is free from difficulty, and by recurring to the averments in the declaration, is of simple and easy solution. After alleging the existence of the common highway, and that'it was the customary, and most direct and convenient route for the plaintiff to pass and re-pass to and from the county town, mills, market, &e., with his horses, wagons and carriages, the declaration avers that the defendant wrongfully obstructed the same, by building a fence across it, which prevented the plaintiff from driving his horses, &c., laden with the products of his farm, and other commodities, over said highway, by reason of which the plaintiff was obliged to drive his horses, &c., laden as aforesaid, back again, and by a very circuitous road, and for a much greater distance than he otherwise would, and of right ought to have done.” Then follows the averment of special damage in the following words: “And .the plaintiff says that he had made a journey with his said horses and wagons, from his said farm, through and over said highway, to his market town, to wit: Frederick city, in said county, and on his said journey, was returning to his said farm, when he met the said obstruction,.and was withheld by the defendant from removing the same, so that he could not pass, and was obliged to proceed to his said farm, from said market town, by a very circuitous route; and the plaintiff says that, at divers other times, he was greatly hindered and delayed, and put to great loss of time and money, by reason of being compelled, by means of said obstruction, to go and return, pass and re-pass to and from his said farm, by a very circuitous road, and of much greater distance to the said market town, and to mills and said court-house, than he otherwise would and of right ought to have done, with his said horses, wagons and carriages, laden as aforesaid; and by means of shutting up and closing said highway, wrongfully prevented him, the said plaintiff, from driving and conduct — 271 — ing his said horses, wagons and carriages, laden as aforesaid, over and along said highway, as he was used and accustomed, and of right ought. And the plaintiff says that, by the means aforesaid, he hath been, and still is, deprived of the use of said highway, to which he is entitled, and hath sustained damage to the value of one thousand dollars.” "We have set out at length the averments in the declaration, in order that it may be seen whether the allegation of special damage to the plaintiff is of such a nature as to entitle him to maintain the action. It is not averred that the highway, which was obstructed, was the only way to and from his farm, or that it was necessary to enable him to pass and re-pass from his farm to mili, market, Ac. The averment is, that it was the most direct and convenient ronte. By its obstruction, therefore, ho experienced no other damage or inconvenience, except such as was common to other citizens having occasion to pass by that way; they, as well as himself, were obliged to go by a longer or more circuitous route. The special damage alleged is that, having gone to Frederick city by the highway in question, as he was returning home, he met the obstruction, was withheld by the defendant from removing it, and in consequence, “ was obliged to proceed to his farm by a very circuitous route.” This is nothing more than a statement of a particular instance, in which the plaintiff suffered an inconvenience which was common to the rest of the community, and is not, in our opinion, such special damage as entitles him to maintain this action. The objection is not to the form of the averment, but is substantial, going to the very ground and cause of action, which, as was said by Tisml, Chief Justice, in Wilkes vs. Hungerford M. Co., 2 Bing., N. C., 281, exists only “ where the plaintiff has sustained some peculiar injury beyond that which affects the public at large.” — 272 — All the authorities agree that to support the action, the damage must be different, not merely in degree, but different in kind from that suffered in common, hence it has been well-settled, that though the plaintiff may suffer more inconvenience than others from the obstruction, by reason of his .proximity to the highway, that will not entitle him to maintain an action. Stetson vs. Faxon, 19 Pick., 147; Thayer vs. Boston, 19 Pick., 511, 514; Quincy Canal vs. Newcomb, 7 Met., 283. A great number of cases both English and American were cited at the bar and have been examined by us, in which the question has been considered, as to what will constitute such special or particular damage as to entitle a party to sue for an obstruction of a highway. We deem it unnecessary to refer to them here particularly, or to enter upon an analysis of them. As we before remarked the decisions are not without some apparent conflict. But we have found no well considered case which sustains the judgment of the Court below on the demurrer, or justifies us in holding the damage here alleged to be sufficient. Rose vs. Miles, 4 M. & S., 101, has been much relied on by the appellee. In that case the plaintiff was obstructed in navigating a river by the defendant wrongfully mooring a barge across it; it was held that he could maintain his action, it being alleged that he was compelled to unload his barges and carry his goods overland by which he incurred great expense. But that case is very unlike this; here no substantial damage is alleged. The case most resembling this is Greasly vs. Codling, 2 Bing., 263, in which the plaintiff had been delayed four hours by an unlawful obstruction in a highway, and his being thereby prevented from performing the same journey as many times in a day as if the obstructions had not existed, was held to be a sufficient special or particular injury to entitle him to maintain a suit. But it appeared in that case that the plaintiff was engaged as a “ coal higgler,” his occupation was carrying coal upon the highway, and the — 273 — damage lie suffered was in the conduct of his business and of a substantial nature; and was held to be different in kind from that suffered by the public at large. The case of Greasly vs. Codling, was decided in the Common Pleas in 1821; and was ruled upon the authority of Lord Ellbnborobgii’s judgment in Rose vs. Miles ; and we think carried the doctrine in support of such actions farther than the previous decisions would warrant. But the case before us cannot be brought even within the principles of Greasly vs. Codling. In England the tendency of more recent decisions has been rather to restrict the rule regulating the cases in which this description of action may be maintained; and we agree with what was said by Maiitin, B., in the late case of Winterbottom vs. Derby, that the rules of law allowing such actions ought not to be extended. The case of Winterbottom vs. Derby, 2 Exch., 316, decided in 1867, was very analogous to this. The plaintiff sued for damages caused by the obstruction by the defendant of a highway, being a public footway, alleging “that he was on divers days hindered and prevented from passing and rc-passing over and along said footway and using the same, and was obliged to incur, and did incur, on divers days, great expense in and about removing said obstructions, in order that he might, and before he could, pass and re-pass over and along the said footway, and use the same in and about bis lawful business and affairs, and was greatly hindered and delayed in and about the same.” It was decided, all the Judges concurring, that the action could not be maintained. In the course of the argument Kelly, C. B., said: “ But be is not damaged more than others of the public who may happen to pass along the way. The result of this argument would seem to be that every individual who attempted to pass along the path, could bring an action.” And in rendering his judgment, after stating that the plaintiff had suffered an inconvenience common to all who happened to pass that way, the — 274 — same learned Judge remarked: “I think that to hold the action maintainable, would be equivalent to saying it is impossible to imagine circumstances in which an action could •not be maintained.” This observation, we think, may be applied with great propriety to the present case. (Decided 3d March, 1871.) In the same opinion the true principle is stated to be “that he and he only can maintain an action for an obstruction, who has sustained some damage peculiar to himself, his trade or calling.” As no such damage is alleged in the declaration in this case, we are of opinion the demurrer ought to have been sustained. The judgment must therefore be reversed; and it is of course unnecessary to express any opinion upon the questions presented by the bills of exceptions. Judgment reversed.