Brown v. Watson , 47 Me. 161 ( 1859 )

The opinion of the Court was drawn up by

Appleton, J.

The defendant obstructed the. public highway, over which the plaintiff was passing,- by felling trees across the same, so as to render it impassable. He thus caused a nuisance, for which he might have been indicted.

The law is well settled, that no person can maintain an action for a common nuisance, unless he has suffered therefrom some special and peculiar damages other and greater than those sustained by the public generally. Those, who have no occasion of business or pleasure to pass over a road thus obstructed, and who have not attempted it, cannot maintain an action for the obstruction thereon.

The case of the plaintiff is different. He was returning home with a loaded team, as well he might, upon a legal highway, till, on his way, he was stopped by the obstructions of the defendant, and compelled, with his team, to proceed by a more circuitous route to his place of destination. The trouble and loss of time thus arising may not be great, but that affords no reason why the defendant, who wilfully caused them, should not recompense him therefor.

“ An action of the case lies by the plaintiff for the disturbance of a way by stopping it, per quod uti non possit.” 1 Com. Dig., Action on the Case, A 2. It was decided in Griesley v. Codling, 2 Bing., 263, that a person, being obstructed on his journey and obliged to proceed by a more circuitous route, might recover for the loss of time and inconvenience, against the individual by whom the obstructions were erected. The same right of action was held to exist against one obstructing a navigable river. Rose v. Miles, 4 M. & S., 103. The same principles were affirmed in Pierce v. Dart, 1 Cow., 609. The individual obstructed, removing the obstructions, was held entitled to recover the expenses thus incurred in Lansing v. Wiswell, 5 Denio, 213. The Supreme Court of Pennsylvania applied the principles of the common law, as already stated, to the analogous case of a public highway by water. Heiser v. Hughes, 1 Bin., 463. In Pittsburgh v. Scott, 1 Barr., 309, the declaration alleged that, in consequence of the alleged common nuisance, the plaintiffs were forced to conduct their horses and carts by a longer and more difficult way, and it was held that the action could be supported on this ground. In accordance with these authorities is the case of Stetson v. Faxon, 19 Pick., 147, in which the whole subject is elaborately discussed in the learned opinion of Mr. Justice Putnam.

It has been held that a recovery could not be had against a town for loss or inconvenience arising from its negligence in not seasonably removing an obstruction, in consequence of which the plaintiff was delayed in his journey or was obliged to take a more circuitous route. Holman v. Townsend, 13 Met., 297. The same principle, as applicable to towns, has been recognized as law in this State, in the case of Weeks v. Shirley, 33 Maine, 271. The duties and obligations of towns are regulated solely by statute; and these decisions rest entirely upon the peculiar language of the statute imposing them. But the common law, as to nuisances, is unchanged. The rights and remedies of those injured thereby, and the liabilities of those causing an injury through their unlawful acts, are unaffected by any statutory enactments. They remain as at common law.

It is urged that, to sustain this action, would lead to a multiplicity of suits; that is to say, that very many persons have been put to loss and inconvenience by reason of the wrongdoings of numerous defendants; and that because they are so many, therefore, none should receive compensation. In other words, the better is the defence of wrongdoers, the more numerous the persons whom they have injured, and the more extensive and wide spread the consequences of their injurious acts. A principle like this would undoubtedly be grateful to all wrongdoers; but it would hardly commend itself to the sufferers.

For an injury to a particular person, as by a common nuisance, no matter how inconsiderable the injury, he may maintain an action. Alexander v. Kerr, 2 Rawle, 83.

Defendant defaulted.

Tenney, C. J., and Rice, Cutting, May, and Goodenow, JJ., concurred.