tinguished the case from that of Harvard College v. Stearns,1 in which it was held that a private action would not lie upon proof merely that the defendant had filled up a navigable creek and thereby rendered the plaintiff's land more difficult of access and less valuable. Whenever the obstruction immediately adjoins or is against the front of the plaintiff's premises, it is as to him a private nuisance for which an action will lie, or which may be restrained by injunction.2 But when it is at a distance from the plaintiff's land, and the only injury which he sustains consists of inconvenience nuisance. Locks and Canals v. Lowell, 7 Gray, 223; Emery v. Lowell, 104 Mass. 13; Nichols . Boston, 98 Mass. 39; Eames v. New England Worsted Co., 11 Met. 570; Child v. Boston, 4 Allen, 41; Sherman v. Tobey, 3 Allen, 7; Boston Rolling Mills. Cambridge, 117 Mass. 396; Boston v. Richardson, 19 How. 263; 24 How. 188; Gerrish v. Brown, 51 Maine, 256; Franklin Wharf v. Portland, 67 Maine, 46; Frink v. Lawrence, 20 Conn. 117; Clark v. Peckham, 9 R. I. 455; 10 R. I. 35; Attorney General v. Birmingham, 4 Kay & Johns. 528. 1 15 Gray, 1. 2 Brayton v. Fall River, 113 Mass. 218; Haskell v. New Bedford, 108 Mass. 208; Blackwell v. Old Colony Railroad Co., 122 Mass. 1; Breed v. Lynn, 126 Mass. 367 ; Barron v. Baltimore, 2 Am. Jur. 203; Boston v. Richardson, 24 How. (U. S.) 188; Simmons v. Lillystone, 8 Exch. 431; Blundell . Catterall, 5 B. & Ald. 287, 294, 304, 309; Somerset v. Fogwell, 5 B. & C. 883; Wilkes v. Hungerford Market Co., 2 Bing. N. R. 281; Rose v. Groves, 5 M. & G. 613; 6 Scott, N. R. 645; Lyon v. Fishmongers' Co., 1 App. Cas. 662; Green e. Kleinhaus, 2 Green (N. J.) 472; Williams v. Tripp, 11 R. I. 453; Abbott v. Mills, 3 Vt. 521; Cotton v. Mississippi Boom Co., 19 Minn. 497; Wilder v. De Cou, 26 Minn. 10; Walker v. Shepardson, 2 Wis. 384; 4 Wis. 486; Potter v. Menasha, 30 Wis. 492; Williams v. Council or loss of access thereto, without direct and clearly defined damage other than the general depreciation of property common in a greater or less degree to all the riparian owners similarly situated, and preventable by an abatement of the nuisance, the plaintiff cannot maintain an action.1 § 124. The English decisions distinguish between injuries to the riparian right of access and those which accrue to persons exercising the public right of navigation. In Rose v. Groves,2 in which an innkeeper recovered damages against the defendant for wrongfully preventing the access of guests to his house upon the river Thames, by placing timbers in the river opposite the inn, Tindall, C. J., said: 3 "This is not an action for obstructing the river, but for obstructing the access to the plaintiff's house on the river." In Attorney General v. Conservators of the Thames, Lord Hatherley said: "I apprehend that the right of the owner of a private wharf, or of a roadside property, to have access thereto, is a totally Harvard College v. Stearns, 15 Gray, 1; Transportation Co. v. Chicago, 99 U. S. 635; Lansing v. Smith, 8 Cowen, 146; 4 Wend. 9; Manhattan Gaslight Co. v. Barker, 36 How. Pr. 233; Bailey v. Philadelphia Railroad Co., 4 Harr. (Del.) 389; McLaughlin v. Charlotte Railroad Co., 5 Rich. (S. C.) 583; Kearns v. Cordwainers' Co., 6 C. B. N. s. 388; Bigelow v. Hartford Bridge Co., 14 Conn. 565; O'Brien . Norwich Railroad Co., 17 Conn. 372; Clark v. Saybrook, 21 Conn. 222; Seeley v. Bishop, 19 Conn. 135; Burrows v. Pixley, 1 Root, 363; Aram v. Shallenberger, 41 Cal. 449; Cowell. Martin, 43 Cal. 605; Hopkins v. Western Pacific Railroad Co., 50 Cal. 190; Schulte v. North Pacific Transportation Co., 50 Cal. 592; George v. Northern Pacific Railroad Co., 50 Cal. 589; Bigley v. Nunan, 53 Cal. 403; Severy . Central Pacific Railroad Co., 51 Cal. 194; Jarvis v. Santa Clara Valley Railroad Co., 52 Cal. 438; Folsom v. Freeborn, 23 Alb. 25 M. & G. 613; 6 Scott, N. R. 645; Wilkes v. Hungerford Market Co., 2 Bing. N. R. 281; Pentley v. Lynn Paving Commissioners, 13 W. R. 983; Stephen v. Costor, 3 Burr. 1408; Wyatt v. Thompson, 1 Esp. 252; Anon., 1 Camp. 517, note; Rex v. Russell, 6 B. & C. 566; Attorney General v. Conservators, 1 H. & M. 1; Kearns v. Cordwainers' Co., 6 C. B. N. s. 388; Lyon v. Fishmongers' Co., 1 App. Cas. 662, and L. R. 10 Ch. 679; Moore v. Great Southern Railway Co., Ir. R. 10 C. L. 46; Richardson v. Boston, 24 How. 188; Yates v. Milwaukee, 10 Wall. 497; Haskell v. New Bedford, 108 Mass. 208, 216. 35 Man. & G. 613; 6 Scott, N. R. 645. 41 H. & M. 1. different right from the public right of passing and repassing along the highway on the river." And in Lyon v. Fishmongers' Company, Lord Cairns, L. C., said, referring to Rose v. Groves: "As I understand the judgment in that case, it went, not on the ground of public nuisance, accompanied by particular damage to the plaintiff, but upon the principle that a private right of the plaintiff has been interfered with.""Independently of the authorities, it appears to me quite clear that the right of a man to step from his own land on to a highway is something quite different from the public right of using the highway. The public have no right to step on to the land of a private proprietor adjoining the road. And though it is easy to suggest metaphysical difficulties, when an attempt is made to define the private as distinguished from the public right, or to explain how the one could be infringed without at the same time interfering with the other, this does not alter the character of the right." According to these decisions, which do not differ in principle from Brayton v. Fall River and Haskell v. New Bedford, it is the right of access to and from the highway, and not the right of access by means of the highway, which is regarded as a private right.2 An obstruction in front of one's own premises may prevent his entering upon the highway and thus interfere with a peculiar right. But when he is once upon the highway, he is a traveller like the rest of the public, and though an obstruction at a distance may as effectually prevent ingress and egress as when it is opposite his door, yet the right to pass along the way is one which he shares. in common with the general public. Injuries to riparian 11 App. Cas. 662; L. R. 10 Ch. 679; Bell v. Quebec, 5 App. Cas. 84; Brown v. Gugy, 2 Moo. P. C. (N. s.) 341; Buccleugh v. Metropolitan Board of Works, L. R. 5 H. L. 418; Metropolitan Board of Works v. McCarthy, L. R. 7 H. L. 243; Beckett v. Midland Railway Co., L. R. 3 C. P. 82; Lord v. Commissioners of Sydney, 12 Moo. P. C. 473; Miner v. Gilmour, Ibid. 131; Benjamin v. Storr, L. R. 9 C. P. 400; Fitz v. Hobson, 28 W. R. 459, 722. 2 In other words, the distinction is between rights of immediate access from a man's property to a highway, and the power to complain of a mere obstruction in the highway. See cases above cited; also, Caledonian Railway Co. v. Ogilvy, 2 Macq. Sc. App. 229; Montreal . Drummond, 1 App. Cas. 384; Bell v. Quebec, 5 App. Cas. 84, 97 owners arising from obstructions to the navigation may thus differ from those sustained by members of the public who are simply prevented from exercising the common right of passage upon the water. § 125. A private action also lies, according to numerous decisions, in favor of the owners of vessels which have been wrecked or injured, without negligence on the part of those in charge, in consequence of unlawful obstructions in navigabl waters; and such an action has frequently been maintain d by those whose vessels have been thus delayed, or lost their voyage. One who suffers no pecuniary damage from a obstruction in a highway, but is merely put to the inconvenience, common to all who use the way, of removing the obstruction or of taking a more circuitous route, cannot maintain an action.2 In New York any expense or delay, however trifling, incurred by one member of the public in removing an unlawful obstruction in a highway has been held to be ground for an action,3 and damages may be recovered for a peculiar private injury caused thereby, though a like injury is sustained by numerous other persons.4 § 126. It has been held that one who is prevented from abating the nuisance can recover the damages which he sus 1 Hogg v. Zanesville Canal Co., 5 Ohio, 410; Guthrie v. McConnel, 1 West. L. M. 593; Porter v. Allen, 8 Ind. 11; Columbus Ins. Co. v. Peori. Bridge Co., 6 McLean, 70; Irwin v. Sprigg, 6 Gill, 203; Owings v. Jones, 9 Ind. 108; Baltimore v. Marriott, Id. 160; Flower v. Adam, 2 Taunt. 314; Butterfield v. Forrester, 11 East, 60; Marriott v. Stanley, 1 M. & G. 568; Smith v. Smith, 2 Pick. 621; President v. Dusouchett, 2 Cart. (Ind.) 586; Kennard v. Burton, 25 Maine, 39; Harlow v. Humiston, 6 Cowen, 189; Plumer v. Alexander, 12 Penn. St. 81; Irwin v. Sprigg, 2 Bland, 2. 2 Winterbottom v. Derby, L. R. 2 Ex. 316; Wiggin v. Boddington, 3 C. &. 544; Fineaux v. Hovenden, Cro. Eliz. 664; Hubert v. Groves, 1 Esp. v. Caples, 17 Md. 179; Garitee v. Baltimore, 53 Md. 422, 437; Farrelly v. Cincinnati, 2 Disney (Ohio) 516; McCowan v. Whitesides, 31 Ind. 235; Shed v. Hawthorne, 3 Neb. 179; Barr v. Stevens, 1 Bibb, 292. See Pittsburgh v. Scott, 1 Penn. St. 309. 3 Pierce v. Dart, 7 Cowen, 609; Lansing v. Wiswall, 5 Denio, 213; Lansing v. Smith, 4 Wend. 9; 8 Cowen, 146; Hudson River Railroad Co. v. Loeb, 7 Rob. 418. 4 Francis v. Schoellkopf, 53 N. Y. 152; Soltau v. De Held, 2 Sim. N. S. 133. tains by the consequent delay or loss of his voyage. And, by the apparent weight of authority, at least of the older decisions, one who (being, as it is said, in actual occupation of the navigation, and not merely having it in contemplation 2) is forced by the obstruction, not merely to go a longer way, but to carry his cargo overland in order to reach a particular point, or to abandon his voyage, suffers peculiar damage, distinguishable from that inflicted upon the general public and entitling him to recover the additional expenses to which he is unlawfully subjected. But the evidence of damage must be direct and positive; and if the plaintiff is himself responsible for the obstruction in whole or in part, or if his own want of ordinary caution is the cause of the injury,5 he cannot recover. A company, incorporated for the purpose of improving a navigable river which suffers a loss. 1 Chichester v. Lethbridge, Willes, 71; Hart v. Bassett, T. Jones, 156; Winterbottom v. Derby, L. R. 2 Ex. 316; Hughes v. Heiser, 1 Binney, 463. 2 Rose v. Miles, 4 M. & S. 101. 3 Cases above, notes 1, 2; Rose v. Miles, 4 M. & S. 101; Blagrave v. Bristol Water Works Co., 1 H. & N. 367; Bacon v. Arthur, 4 Watts, 437; Williams v. Tripp, 11 R. I. 447; Hart v. Bassett, T. Jones, 156; Maynell v. Saltmarsh, 1 Keb. 847; Wiggins v. Boddlington, 3 Car. & P. 156; Iveson r. Moore, Carth. 451; 1 Ld. Raym. 486; Salk. 15; Greasly v. Codling, 2 Bing. 263; 9 Moore, 489; Lyme Regis . Henley, 1 Bing. N. R. 222; 3 B. & Ad. 77; 2 Cl. & Fin. 331; Wilkes v. Hungerford Market Co., 2 Bing. N. C. 281; Dudley v. Kennedy, 63 Maine, 465; Brown v. Watson, 47 Maine, 161; Veazie v. Dwinel, 50 Maine, 490; Gerrish v. Brown, 51 Maine, 256; Cole v. Sprowl, 35 Maine, 161; Low v. Knowlton, 26 Maine, 128; Stetson v. Faxon, 19 Pick. 147; Atkins . Bordman, 2 Met. 457, 469; Harvard College v. Stearns, 15 Gray, 1, 6; Blackwell v. Old Colony Railroad Co., 122 Mass. 1; Jolly v. Terre Haute Drawbridge Co., 6 McLean, 237; United States v. New Bedford Bridge, 1 Wood. & M. 401; Clark v. Peckham, 10 R. I. 35; Enos v. Hamilton, 27 Wis. 256; Hall v. Kitson, 4 Chand. (Wis.) 20; Pittsburgh v. Scott, 1 Penn. St. 309; Bacon v. Arthur, 4 Watts, 437; Rhines v. Clark, 51 Penn. St. 96; Philadelphia v. Collins, 68 Penn. St. 106; Philadelphia v. Gilmartin, 71 Penn. St. 140; Newbold v. Mead, 57 Penn. St. 487; Powers v. Irish, 23 Mich. 429; Martin v. Bliss, 5 Blackf. 35; Memphis Railroad Co. v. Hicks, 5 Sneed, 427; South Carolina Railroad Co. v. Moore, 28 Ga. 398; Tyrrell v. Lockhart, 3 Blackf. 136; Brown v. Scofield, 8 Barb. 239. Contra, Carey v. Brooks, 1 Hill (S. C.) 365; McLauchlin v. Railroad Co., 5 Rich. (S. C.) 592; Houston v. Police Jury, 3 La. Ann. 566. Powers v. Irish, 23 Mich. 429; Baxter v. Winooski Turnpike Co., 22 Vt. 114; Brown v. Watson, 47 Maine, 161; Milarkey v. Foster, 6 Oregon, 378. 5 Ante, § 92; post, § 128. 6 McGinnis v. Blackman, 39 Mich. 111; Flynn v. Canton Co., 40 Md. 312. |