Lamphier v. Worcester & Nashua Railroad , 33 N.H. 495 ( 1856 )

Bell, J.

The counts in this declaration are both in cas’e, and for an injury of the same kind. The proceeding required to charge a railroad corporation for obstructing a way differs, somewhat, from that adopted at common law in similar cases. But the remedy is the same in every substantial respect. They are of the same nature; they admit of the same pleas, and the same judgment may be given on both. 1 Chit. Pl. 197; Arch. Pl. & Ev. 172. And the court will intend them to be for different injuries. West v. Trolles, 1 Salk. 213.

We have been referred to no case where counts in case for torts have been held to be misjoined, while those cited for the plaintiff have a strong bearing against the objection. In Wiswall v. Lansing, 5 Denio 213, counts for obstructing a private way were joined with one for obstructing a public way to the plaintiff’s damage. In Fairfield v. Burt, 11 Pick. 244, a count in trespass at common law was joined with one under a statute for double damages; and in Worster v. Canal Bridge, 16 Pick. 541, a count in case at common law for an injury from a defective bridge, was joined with one for double damages under a statute; and see Prescott v. Tufts, 4 Mass. 146.

If a count states a good cause of action at common law, the court cannot inquire, upon a demurrer, whether, upon the evidence, that count can be supported. If, therefore, we assume that where a statute points out a specific mode of redress for a particular damage done by authority of law, the party is confined to that remedy; the objection cannot be made by demurrer, unless it appears upon the face of the declaration that the case is within the statute, which is not this case.

The objection to the second count, that it does not show the defendants to be a public corporation, or to have adopted the act of 1844, does not seem well founded. The count is good at common law, and not impaired by the special averments, if the defendants are not shown to be within the operation of the statute. In that case it was superfluous to allege that the defendants were a railroad corporation, and did the injury in constructing their road, and were duly notified of the obstruction. These averments were, then, merely surplusage, and might be rejected, if the corporation was not one to which the statute provisions did not apply.

But upon an examination of the act of 1847, referred to, (Comp. Stat. 350 ;) we see no reason to suppose that the provision in question is confined to corporations of a public nature, or to those which have adopted the act of 1844. It is broad and general in its terms, commencing, “ If any railroad corporation,” &e., and there is nothing in the act which restricts its operation to any particular class of railroads. By the title, the act is in addition to the act of 1844, but as the act is, neither in its terms nor its spirit, confined to a class, it could not be properly restricted by a reference to its title. 1 Kent’s Com. 460; Piscataqua Bridge v. N. H. Bridge, 7 N. H. 57.

The principle is very clear, that no individual can maintain a private action for a wrong merely public. If a party sustains special damage by the obstruction of a public way, that is an injury peculiar to himself, and in which other members of the community do not share. He may maintain a special action for the injury. Where the obstruction is a common injury to all the community, the public may proceed by indictment or information ; but for hindering a man’s passage in the highway, without showing special damage, case will not lie, for it is a public injury, punishable by presentment and indictment. 7 H. 8, 27; Mary’s Case, 9 Co. 113; and there would, moreover, be a multiplicity of suits, for if one man might have an action in such a case, all men might do the like. Co. Litt. 56, a ; Williams’ Case, 5 Co. 73; 5 Denio 213. Therefore, where an action was brought against a defendant for making a ditch and erecting a pale across the street, it was held that without a special grief shown by the plaintiff the action would not lie. Fineux v. Hovenden, Cro. El. 664; though, if special damage be alleged, the case is different. Greasly v. Codling, 2 Bing. 263. So if the party had a private way before the public gained their easement. Allen v. Ormond, 8 East 4.

In the present case, the declaration is so framed that it does not appear whether the right of way claimed is public or private, and the right is so alleged that no inference can be drawn as to that matter. The usual form, 2 Ch. PL 358, sets forth that the party is seized or possessed of certain real estate, and by reason thereof is entitled to a way from the said real estate over certain premises to the public highway, or the like, and these allegations show it to be private. But in this declaration, though it is alleged that the party is seized of a lot of land, yet it is not alleged that he has the way by reason of his title or possession, nor that the way leads from that land. In short, all that is said about this lot of land might be omitted, since it does not appear to have any connection with the way claimed. In the argument it is saidt hat the way is not claimed by reason of title, or possession of this lot of land, or as appurtenant to it; and that it would therefore be wrong and a fatal defect to declare for it in that way, and this seems to be clear upon the authorities cited. It is said the way is claimed by grant; that is, as we understand, in gross. A way may be so claimed, as there is no necessary connection between the possession of land and a right of way. A common carrier may well have a private way across another’s land for the transaction of his business, though he neither owns nor occupies land any where ; and therefore the insertion of an allegation connecting the road with land, is not necessary, and its absence will not vitiate a declaration. Winford v. Wollaston, 8 Lev. 266; Warren v. St. Hill, 2 Vent. 185; Pollard v. Casey, 1 Bulst. 47.

Yet we think that in such case the right of way should be so stated that it may appear that the action is brought not for the obstruction of a public way, but of the plaintiff’s private way.

The objection that there is no sufficient designation or description of the land of which the plaintiff alleges himself seized, would seem to be well founded. Thus it was held, that where it was alleged that a way goes “ de quadam peda terree cont, 4 acras,” it is not good, for peda terree is uncertain. Com. Dig., Chim. Priv., D, 2, citing Sut. 124 ; but it is quite as certain as a “ lot of land situate in N.” But the exception is immaterial, and no ground of demurrer, because the whole allegation as to the land is surplusage, and might be struck out as unmeaning, since it is not shown to have any connection with the way, which is neither described as appendant to it nor terminating at it.

The termini of a private way should be set out, though it is otherwise as to a public way. Rouse v. Borden, 1 H. B. 358. It was very early held that a private way should be shown to pass from such a place, as from one close to another, from a house to a close, &c. Thus, 45 E. 38, per Finchden, “ you shall not have the way unless you claim to some franktenement, or from your franktenement to the high street, or to the church, or otherwise the writ is not good.” Bro. Ab. Vin., pl. 21; 39 H. 6, 6; Bro. Ab., Chim. 6; Hobart 190; Gogle’s Case, Hutt. 10; Cobb v. Allen, 1 Bulst. 47; Pollard v. Casey, Yel. 164; Alban v. Brownsall, S. C. Though it is said any error by omitting the termini will be cured by verdict. Clark v. Cheney, 1 Vint. 13; Com. Dig., Action, Disturbance, B, 1; Chimin, D., 2.

In prescribing for a way the defendant ought to show, a quo loco ad quern locum, the way is; and though a way may be in gross, yet it ought to be bounded and circumscribed to a certain plan. Alban v. Brownsall, Yelv. 163; Brownlow 215, S. C; Gogle’s Case, Hol. 190.

The case of Staple v. Heydan, C. Mod. 1, cited Com. D., Chim., D, 2, is in this respect very like the case before us. It was there held that it is not good if the defendant says that he is seized of B, and has a way through the close of the plaintiff to the Thames, for he ought to say that he has a way from B, through the close of the plaintiff to the Thames.

In the present case, the way is described as a certain way for passing and repassing, with teams, &c., to and from the public highway, called Hollis road, by a passage called Pine street. The public highway is a good terminus at one end, but no limit is given at the other. There is, therefore, no terminus a quo set out, and the description is, therefore, defective, and the declaration insufficient. The demurrer must be sustained, though leave may be given to amend.