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 toad. 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 v. 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 navigable waters; and such an action has frequently been maintained by those whose vessels have been thus delayed, or lost their voyage.1 One who suffers no pecuniary damage from an 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.*

§ 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. Peoria 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.

Winterbottom v. Derby, L. R. 2 Ex. 316; Wiggin v. Boddington, 3 C. & P. 544; Fineaux v. Hovenden, Cro.

Eliz. 664; Hubert v. Groves, 1 Esp. 148; Carpenter v. Mann, 17 Wis. 155; Greene v. Nunnemacher, 36 Wis. 50; Houck . Wachter, 34 Md. 265; Shipley 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. Sinith, 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.1 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, 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;

2 Rose v. Miles, 4 M. & S. 101. 3 Cases above, notes 1, 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 v. Moore, Carth. 451; 1 Ld. Raym. 486; Salk. 15; Greasly v. Codling, 2 Bing. 263; 9 Moore, 489; Lyme Regis v. 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 r. 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 r. 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.

4 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.

McGinnis v. Blackman, 39 Mich. 111; Flynn v. Canton Co., 40 Md. 312.

of its tolls in consequence of an unauthorized bridge across the river, may maintain a suit to prevent its completion.' So the obstruction of a canal, though amounting to a public nuisance, is actionable when it involves the breach of a private warranty. The owner of a ferry beyond the limits of a city from which public travel is diverted by the failure of the city to keep a certain street in repair, suffers no injury other than that shared by the general public in being deprived of the right of passage, and is not entitled to maintain an action for such injury.3

§ 127. In Enos v. Hamilton, in Wisconsin, the plaintiff had a tannery in the village of New London on the Wolf River, and procured the bark necessary for carrying on his business at a point upon the Wolf River about sixty miles above New London, which was the only place where the bark required could be obtained. The Wolf River between these points is a navigable stream, and the defendants obstructed that part of the river so that the plaintiff could not obtain the bark, and his business was injured. It was held that peculiar damage to the plaintiff was established, and that the action could be maintained. The opinion refers to earlier decisions in Massachusetts, but is not reconcilable with the later decisions in that State. It has, however, more or less support in the decisions of other States.7

1 Wisconsin River Improvement Co. v. Lyons, 30 Wis. 61.

2 Bruning v. New Orleans Canal Co., 12 La. Ann. 541. Obstructions to the navigation do not excuse the breach of a contract to deliver merchandise by a certain day. Dodge v. Van Lear, 5 Cranch, C. C. 278.

3 Prosser v. Ottumwa, 42 Iowa, 509. * 27 Wis. 256; 24 Wis. 658; Barnes v. Racine, 4 Wis. 454; Walker v. Shepardson, 2 Wis. 384.

→ Citing Stetson v. Faxon, 19 Pick. 147; Blood v. Nashua Railroad Co., 2 Gray, 137; Smith v. Boston, 7

Cush. 254; Brainard v. Boston, Id. 506; Holmes v. Townsend, 13 Met. 297; Carpenter v. Mann, 17 Wis. 155. 6 Ante, § 122.

7 Tinsman v. Belvidere Delaware Railroad Co., 26 N. J. L. 148; 25 N. J. L. 255; Shephard v. Barnett, 52 Texas, 638; Hickok v. Hine, 23 Ohio St. 523. See Maxwell v. Bay City Bridge Co., 46 Mich. 278; New York v. Baumberger, 7 Rob. (N. Y.) 219; Hudson River Railroad Co. r. Loeb, 7 Rob. 418; Manhattan Gaslight Co. v. Barker, 7 Rob. 523; 36 How. Pr. 233.

3

§ 128. A common nuisance may be abated without compensation and without notice.2 When a public highway is unlawfully obstructed, any individual who has occasion to use it, and is thereby stopped in his journey, may remove the obstruction in order to effect a passage; and he may enter upon the land of the person erecting or continuing the obstruction, if necessary to remove it. It has been held that the remedies by abatement and by indictment are in all respects concurrent and co-extensive, and that any person representing the public may abate a common nuisance.5 An individual cannot, however, abate a common nuisance, if it would cause a breach of the peace; and, although the public remedy may be pursued whenever the passage is partially obstructed, the master of a vessel would not be justified in running his vessel upon the obstruction unneces

1 Coe v. Schultz, 47 Barb. 64; Manhattan Manufacturing Co. v. Van Keuren, 23 N. J. Eq. 251.

Missouri River Packet Co. v. Hannibal Railroad Co., 1 McCrary, 281.

3 Arundel v. McCulloch, 10 Mass. 70; Wales v. Stetson, 2 Mass. 143; Garey v. Ellis, 1 Cush. 307; Brown v. Perkins, 12 Gray, 89; Willis v. Sproule, 13 Kansas, 257; Beach v. Schoff, 28 Penn. St. 195; Owens v. State, 52 Ala. 400; Hopkins v. Crombie, 4 N. H. 520; State v. Anthoine, 40 Maine, 435; Lincoln v. Chadbourne, 56 Maine, 197; Earp v. Lee, 71 Ill. 193; Rung v. Shoneberger, 2 Watts, 23; Selman v. Wolfe, 27 Texas, 68; James v. Hayward, Cro. Car. 184; Harrington v. Edwards, 17 Wis. 586; Williams v. Fink, 18 Wis. 265; King r. Sanders, 2 Brev. (S. C.) 111; Dimmett v. Eskridge, 6 Munf. 308.

70.

1 Cal. 462; Pennsylvania v. Wheeling Bridge Co., 13 How. 518, 566; Knox v. Chaloner, 42 Maine, 150; McLean v. Mathews, 7 Brad. (Ill.) 599; State v. Parrott, 71 N. C. 311; Gates v. Blincoe, 2 Dana, 158; Gray v. Ayres, 7 Dana, 375; Brubaker v. Paul, Ibid. 428; Manhattan Manuf. Co. v. Van Keuren, 23 N. J. Eq. 251; Hale, De Portibus Maris, c. 7; Hargrave's Law Tracts, 87, 88; Harvey v. Dewoody, 18 Ark. 252; 4 Black. Com. 167; Bac. Abr. tit. Nuisance, 6; Com. Dig. tit. Action on the Case for Nuisance, D. 4. See Williams v. Blackwell, 32 L. J. Ex. 174; Tarrar v. Nunamaker, 5 Rich. (S. C.) 484. In Virginia, a court of equity may restrain the threatened abatement of a mill dam, on the ground of obstructing the navigation, until the right to maintain the dam is decided. Crenshaw v. Slate River Co., 6 Rand. 245.

4 Arundel v. McCulloch, 10 Mass. Day, 4 Md. 262; Turner v. Holtzman,

5 Renwick v. Morris, 3 Hill, 621; 7 Hill, 575; Coates v. New York, 7 Cowen, 558, 600; Mills v. Hall, 9 Wend. 315; Burnham v. Hotchkiss, 14 Conn. 310, 317; Gunter v. Geary,

54 Md. 148; Mohr v. Gault, 10 Wis. 513; Smart v. Commonwealth, 27 Gratt. 950, 953. Contra, that all necessary force may be used to effect a passage when resistance is made, see Brubaker v. Paul, 7 Dana, 428.