Savannah, Florida & Western Ry. Co. v. Parish , 117 Ga. 893 ( 1903 )

Lamar, J.

The testimony tended to show that water, which collected in a trench dug by the railroad company on its right of way near the plaintiff’s house, became stagnant; that the odors arising therefrom impaired the desirability of his house as a residence, besides causing sickness to himself and family. The defendant introduced no testimony, but on cross-examination brought out the fact that many others in the .immediate neighborhood were likewise affected. It argued that the evidence made out a case of public nuisance, and procured from the court the following charge: “ If you find this to be a public nuisance and not a private nuisance, . . the plaintiff would not be entitled to recover.” A verdict for $2,000 having been rendered in favor of the plaintiff, the company insists that it is contrary to law and to this charge.

Sections 3858 and 3859 of the Civil Code are codifications of general principles, and provide that “ A public nuisance is one which damages all persons which come within the sphere of its operations, though it may vary in its effects on individuals. . . If, however, a public nuisance causes special damage to an individual, in which the public do not participate, such special damage gives a right of action.” If one should obstruct a highway, it would be a public nuisance to be abated as such; but if an individual in going along the road at night should drive over the obstruction and suffer injury as a result, he would be entitled to compensation for the damage done. If another should be specially damaged, he would likewise be entitled to recover. If a dozen individuals in turn were injured, they would each be authorized to sue the wrongdoer for the particular injury inflicted upon them; and for the reason that the defendant had not only created a public nuisance, but that he had likewise specially damaged particular individuals. It may have been that the nuisance here complained of could have been abated by the public; but if before such action was taken it could be clearly shown that plaintiff and his family had suffered, he would not lose his right to sue, though others in the neighborhood had likewise suffered. The private special injury was not merged and lost in the general public injury, of which only the public could complain. If the nuisance results in the impairment of a common right which every one may exercise, such as the use of a street, then the deprivation of that use hinders all persons alike from the enjoyment of the common right; and when it does not cause any special or peculiar damage, it furnishes no cause of action in favor of a particular individual, although he may be greatly inconvenienced. The public at large suffer, and he suffers as a member of the public. The wrong must be righted by the public, instead of by many separate suits at the instance of each member of the body politic who has been inconvenienced. But the public can not be said to enjoy health or suffer sickness. In the very nature of things that can only be predicated of the individual. Whatever affects his health affects him specially, and him alone. Such damage is special damage within the meaning of the code, and the fact that other citizens suffer similar special damages does not convert his injury into the nature of public damages. So, too, anything which damages a particular plaintiff’s property, or renders it unfit for use, is not lost in the general and public nuisance. There are many things which affect a whole community, depress property in an entire city, divert trade, and give rise to a cause of action in favor of no particular citizen. It is damage without the right to recover —damnum absque injuria. But where the cause and the effect are close and immediate; when the inhabitants of a particular house are rendered sick; when the rental value of the residence is immediately and proximately due to a special and particular cause close at hand; and when that cause is produced by a violation of law or the maintenance of something contrary to law or which in its nature works hurt to those near by, a cause of action arises in favor of the injured party against the maintainer of the nuisance; nor does he lose this right because others in the vicinity have similar causes of action. ' To hold otherwise would be to render the defendant liable for one injury, and hold him harmless where many were damaged. South Carolina R. Co. v. Moore, 28 Ga. 418; East Tenn. R. Co. v. Boardman, 96 Ga. 356; DeVaughn v. Minor, 77 Ga. 809; 21 Am. & Eng. Enc. L. (2d ed.) 716.

There are several cases of high authority recognizing the right of a plaintiff to recover under circumstances substantially like those set out in the petition. Vice-Chancellor Bruce in Sampson v. Smith, 8 Sim. 272, held that, “ supposing the nuisance is public, it is private also, and the plaintiff does not apply for relief in respect of the public nuisance, where he sues for his special damages.” In Francis v. Schoelkopk, 53 N. Y. 152, the action was for damages occasioned by stenches arising from the defendant’s tanneries maintained in the city of Buffalo. The court said: “ The evidence discloses that other houses in the vicinity were similarly affected with the plaintiff’s. The ground for the motion for nonsuit was, that as the stench injured a large number of houses the nuisance was common, and no one could maintain an action for his particular injuries. . . The rule is that one erecting a common nuisance is not liable to an action at the suit of one who has sustained no damage therefrom except such as is common to the entire community, yet he is liable to one who has sustained damage peculiar to himself. No matter Row numerous the persons may be who have sustained this peculiar damage, each is entitled to compensation for his injury.” So in Wylie v. Elwood, 134 Ill. 281, 23 Am. St. Rep. 673, where a railroad erected a coal-shed in the heart of a city, and so operated it' as to create a nuisance by reason of the noise, dust, and dirt, destroying the comfort, and injuring the health of the occupants of adjoining property, it was held, citing the Francis case, supra, that a nuisance may at the same time be both public and private, and that a plaintiff is entitled to recover, even though the home of his neighbor is unendurable from the same cause, and that it is no defense for a wrong-doer to show that by the same act he has inflicted like injuries upon numerous other persons. And in Wesson v. Washburn Iron Co., 12 Allen, 95, 90 Am. Dec. 181, it was declared that the rule that where the right impaired is public, an individual action does not lie, has no application to cases where the health of individuals is injured by the creation of noisome smells, no matter how extensive or numerous may be the instances of dis-' comfort or injury to persons or property thereby occasioned.

The allegations in the petition were sufficient to admit the evidence complained of, as to the character of filth drained or thrown into the trench. The evidence as to the depreciation in rental value was admissible as tending to. show a damage to the property, and the charge on the same subject was not error for any reason assigned. The fact that the pool could have been drained, and the accumulation of water prevented, had the City of Valdosta opened a ditch across the street, did not relieve the company of the liability for any injury done by it to the plaintiff. The defendant insists .that the verdict was contrary to law and the evidence, inasmuch as it appeared that much sickness of the same kind existed in other anu remote parts of the city, too distant to be affected by the stagnant pool. This may be true, and a fact to be most carefully considered by the jury, for sickness of the character shown might have been occasioned by the same causes producing it elsewhere in the city; but the defendant introduced no testimony, and that offered by the-plaintiff was uncontradicted, and sufficient to sustain the verdict.

Judgment affirmed.

All the Justices concur.