public nuisance, such as an unlawful obstruction to a common passage, causes peculiar damage to an individual, he may maintain an action therefor. In such case, the declaration or complaint need not negative the lawfulness of the obstruction, or its continuance for a reasonable length of time, or that it was unavoidable because of inevitable accident, these being matters of defence to be set up by answer.1 But the particular damage is the gist of the action, and must be specifically set forth in the declaration.2 It is not enough that injury is shown, but it must be different in kind from

that sustained by the community at large. If a bridge is unlawfully constructed across a navigable stream and arm of the sea, the direct injury is to the navigation of the stream, which is a public interest, and the fact that the plaintiff alone navigates the river, and is the owner of the only wharf thereon above the bridge, being merely proof that the consequential damage to him is greater in degree than to others, does not establish his right to maintain an action, as other riparian owners and the rest of the public may suffer in the same way whenever they use the stream.2 "The case," says Gray, C. J.,3 “has no analogy to those in which an obstruction in a navigable stream sets back the water upon the plaintiff's land, or, being against the front of his land, entirely cuts off his access to the stream, and thereby causes a direct and peculiar injury to his estate, or in which the carrying on of an offensive trade creates a nuisance to the plaintiff." Where the plaintiff's predecessor in title dredged out a channel exceeding one thousand feet in length, about one-fourth of which was within his own dock, and the rest extended seaward through flats owned by other persons, it was held that the action of a city, in filling up by its sewers

fectively sets out the special damage sustained by the plaintiff in consequence of the obstruction preventing his passage with boats, the defect is cured by a verdict in his favor, if the issue joined compels him to prove the special injury. Hall v. Kitson, 4 Chand. (Wis.) 20; 3 Pin. 296. Damages sustained by an individual after action brought are recoverable in such action. Duncan v. Markley, Harper (S. C.) 276.

Ibid. Houck Wachter, 34 Md. 265; Schall v. Nusbaum, 56 Md. 512; Gilbert v. Morris Canal Co., 8 N. J. Eq. 495.

2 Blackwell v. Old Colony Railroad Co., 122 Mass. 1; Blood v. Nashua Railroad Co., 2 Gray, 137; Lawrence v. Fairhaven, 5 Gray, 110; Brightman e. Fairhaven, 7 Gray, 271; Willard v. Cambridge, 3 Allen, 574; Hartshorn

v. South Reading, 3 Allen, 501; Wesson v. Washburn Iron Co., 13 Allen, 95; Brayton v. Fall River, 113 Mass. 218; Borden v. Vincent, 24 Pick. 301; Smith v. Boston, 7 Cush. 257; Thayer v. New Bedford Railroad, 125 Mass. 253; Breed ». Lynn, 126 Mass. 367. 3122 Mass. 3.

4 The defendant would be liable for such injury. Turner v. Blodgett, 5 Met. 240; Cogswell v. Essex Mill Co., 6 Pick. 94; Grigsby v. Clear Lake Water Co., 40 Cal. 396; Sinnickson . Johnson, 17 N. J. L. 129; Rowan v. Johnson, Ibid. 154; Delaware Canal Co. v. Lee, 22 N. J. L. 243; Glover r. Powell, 10 N. J. Eq. 211; Carson r. Coleman, 11 N. J. Eq. 106; Crittenden v. Wilson, 5 Cowen, 165; Steele r. Western Inland Lock Navigation Co., 2 Johns. 283.

the portion of the channel which was beyond the limits of the plaintiff's ownership, did not create an injury which differed in kind from that suffered by other persons owning lands upon the harbor or navigating over the flats, and was not remediable by private action, although access to the plaintiff's wharf was thereby rendered more difficult and expensive, and the wharf itself less valuable.1 If a portion of a lot of flats is taken by a railroad corporation under the right of eminent domain, and the access from navigable water to the remaining portion is thereby cut off, the value of such access may be considered by the jury in estimating the land-owner's injury; but the possibility that the corporation may construct side-tracks on the flats not taken for the purpose of filling the same more easily, or for business purposes, is not an element to be taken into consideration.2

§ 123. If the wrong is actionable, it is none the less so because it is committed in such a way that the defendant may be liable to a public prosecution. Where sewers constructed by a city caused a creek to be filled up directly in front of and adjoining the plaintiff's wharf, so that his vessels could not lie at the wharf on account of the diminished depth of the water, the injury to the plaintiff was held to be different in kind and not merely in degree from that sustained by the general public, and the plaintiff recovered damages in a private suit for this injury. The court dis

Breed . Lynn, 126 Mass. 367. The defendant in this case did not except to the damages assessed for the filling of that part of the channel which was within the limit of the plaintiff's ownership. See, also, Barron v. Baltimore, 2 Am. Jur. 203.

2 Drury v. Midland Railroad, 127 Mass. 571; Commonwealth v. Boston & Maine Railroad, 3 Cush. 25; Boston & Worcester Railroad . Old Colony Railroad, 12 Cush. 605; Willard . Cambridge, 3 Allen, 574; Harvard College v. Stearns, 15 Gray, 1; Clement e. Burns, 43 N. H. 609.

3 Brewer v. Boston Railroad Co., 113 Mass. 52, 58; Commonwealth v. Vermont Railroad Co., 4 Gray, 22; Wesson v. Washburn Iron Co., 13 Allen, 95; Brayton v. Fall River, 113 Mass. 218; Haskell v. New Bedford, 108 Mass. 208.

Brayton v. Fall River, 113 Mass. 218. In Haskell v. New Bedford, 108 Mass. 208, which was a similar case, the court say that neither the special injury to the plaintiff by the filling up of his dock, nor that occasioned by making his premises offensive and unhealthy was merged in the common

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 v. Cambridge, 117 Mass. 396; Boston. Richardson, 19 How. 263; 24 How. 188; Gerrish v. Brown, 51 Maine, 256; Franklin Wharf v. Portland, 67 Maine, 46; Frink v. Law. rence, 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. Balti more, 2 Am. Jur. 203; Boston v. Richardson, 24 How. (U. S.) 188; Simmons v. Lillystone, 8 Exch. 431; Blundell v. 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 v. 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. Smith, 22 Wis. 594; Hobart v. Milwaukee City Railroad Co., 27 Wis. 194; C. B. Railroad Co. v. Twine, 23 Kansas, 585; Frith v. Dubuque Railroad Co., 45 Iowa, 406; Park v. C. & S. W. R. Co., 43 Iowa, 636; Cowell v. Martin, 43 Cal. 605; Meyers . St. Louis, 8 Mo. App. 266; Lackland v. North Missouri Railroad Co., 31 Mo. 180; 34 Mo. 259; Price v. Knott, 8 Oregon, 438; Clark v. Peckham, 10 R. I. 35; 9 R. I. 455; Venard v. Cross, 8 Kansas, 248; Schulte v. North Pacific Transportation Co., 50 Cal. 52; Yolo County v. Sacramento, 369 Cal. 193; Blanc v. Klumpke, 29 Cal. 156; Courtwright v. B. R. Co., 30 Cal. 585; Aram v. Shallenberger, 41 Cal. 449; Clement v. Burns, 43 N. H. 609, 617, 619; Bowman v. Wathen, 2 McLean, 376; Blanchard v. Porter, 11 Ohio, 138; Crawford v. Delaware, 7 Ohio St. 459; Russell v. Burlington, 30 Iowa, 262; McMahon v. Council Bluffs, 12 Iowa, 268; Ewell v. Greenwood, 26 Iowa, 377; Cole v. Sprowl, 35 Maine, 161; Frink v. Lawrence, 20 Conn. 117; Reynolds v. Clarke, 1 Pitts. (Pa.) 9; Harrison v. Sterrett, 4 Har. & McH. 540; Strauss's Case, 37 Md. 237; Gariteer. Baltimore, 53 Md. 422; Enos r. Hamilton, 27 Wis. 256. One who has only a leasehold interest in the premises may maintain the action. Knox v. New York, 55 Barb. 404; 38 How. Pr. 67; De Laney v. Blizzard, 7 Hun, 7.

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: "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

1 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 v. 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 v. 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 v. Central Pacific Railroad Co., 51 Cal. 194; Jarvis v. Santa Clara Valley Railroad Co., 52

Cal. 438; Folsom v. Freeborn, 23 Alb.
L. Jour. 497; Kinealy v. St. Louis
Railway Co., 28 Am. Law. Reg. 124;
Harrison v. Sterrett, 4 H. & McH. 540;
White v. Flannigan, 1 Md. 539.

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.