Zettel v. City of West Bend

Cassoday, J. The gra/oamen of the complaint is that by reason of the construction of the school-house in Elm street, between Fond du Lac and Elizabeth streets, the plaintiff has been compelled, in driving to and from his garden, to take a more inconvenient and circuitous route, to his clam319 age. This is on the theory that the plaintiff has sustained special injury by reason of a public nuisance. The portion of Elm. street obstructed by the school-house is more than a block distant from each of the pieces of land owned by the plaintiff. The law applicable is well stated in one of the cases cited by the learned counsel for the plaintiff, by Shaw, O. J., in these words: “ It is a well-settled rule of law that, if an individual suffer special damage by any unlawful act in obstructing a highway, he shall have his action, although the party doing the act is liable to an indictment. But without such damage, although the act is unlawful, and although more injurious to one proprietor on account of his proximity to the highway than another, still he cannot have an action, because actions would thereby be multiplied indefinitely; but the offender shall be prosecuted by indictment, by which the offense shall be punished and the wrong redressed once for all. What is special damage to sustain the per quod, and enable one to have his several action for an injury common to the whole community, is often a difficult question. It seems to be settled by authorities that it must be something not merely differing in degree, but in hind, from that which must be deemed common to all.” Thayer v. Boston, 19 Pick. 514; S. C. 31 Am. Dec. 159. The same distinction is pointed out and fully considered by Mr. Justice Lyon in Clark v. C. & N. W. R. Co. 70 Wis. 597. In order to recover, it is essential that the plaintiff allege and prove, as there said by Mr. Justice Lyoh, that “ 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.” In that case it was held that the allegation to the effect that, in transporting passengers and freight up and down the river, the plaintiff was almost daily compelled to take a more distant and circuitous route with his steam-yacht, by 320 reason of the bridge having been constructed by the defendant, did-not state a cause of. action. The same rule has been applied to the alteration and discontinuance of a portion of a highway. State ex rel. Board v. Barton, 36 Minn. 145; State ex rel. Williams v. Holman, 40 Minn. 369; School District v. Neil, 36 Kas. 617. In Farrelly v. Cincinnati, 2 Disn. (Ohio), 516, cited by plaintiff’s counsel, the question is discussed in a very lengthy and learned opinion by IIoadly, J., and it was there, among other things, held that “ a traveler who is forced to abandon his nearest route, by reason of the non-repair of the street, and seeks his destination by a longer and more circuitous road, whereby he suffers injury in his business, does not sustain such a special damage as to entitle him to an action against the party charged with the duty of keeping the way in repair. So, also, in case of an omnibus line, which has lost custom by reason of being unable to pursue its customary route in consequence of the founderous condition of a street. In these cases the damages are not the immediate consequences of the wrong, but are remote.” It is manifest from the complaint in the case at bar that the only special damage of the plaintiff alleged is the same in kind, though it may be greater in degree, as would be sustained by any person having occasion to drive from the vicinity of the plaintiff’s residence, or the vicinity of the east end of Elm street, to the vicinity of the west end of that street, and vice versa. We must hold that the complaint states no cause of action. By the Court.—The order of the circuit court is affirmed.