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 defense 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 or complaint. It is burn Iron Co., 13 Allen, 95, 101; Stetson v. Faxon, 19 Pick. 147; Thayer v. Boston, id. 511, 514; Borden v. Vincent, 24 Pick. 301; Quincy Canal v. Newcomb, 7 Met. 276, 283; Holman v. Townsend, 13 Met. 297, 299; Smith v. Boston, 7 Cush. 254; Brainard v. Connecticut River R. Co., 7 Cush. 506, 511; Blood v. Nashua & Lowell Railroad, 2 Gray, 140; Brightman v. Fairhaven, 7 Gray, 271; Harvard College v. Stearns, 15 Gray, 1; Willard v. Cambridge, 3 Allen, 574; Hartshorn v. South Reading, id. 501; Fall River Iron Works Co. v. Old Colony Railroad, 5 Allen, 224; Shaubut v. St. Paul R. Co., 21 Minn. 502; Grigsby v. Clear Lake Water Co., 40 Cal. 396; Gordon v. Baxter, 74 N. C. 470; In re Eldred, 46 Wis. 530, 541; Abbott v. Mills, 3 Vt. 521; Hatch v. Vermont Central R. Co., 28 Vt. 142; Low v. Knowlton, 26 Maine, 128; Lansing v. Smith, 8 Cowen, 146; 4 Wend. 9; Lansing v. Wiswall, 5 Denio, 213; 5 How. Pr. 77; Fort Plain Bridge Co. v. Smith, 30 N. Y. 44; Anderson v. Rochester R. Co., 9 How. Pr. 553; Dougherty v. Bunting, 1 Sand. 1; Purcell v. Potter, Anth. (N. Y.) 310; Osborn v. Union Ferry Co., 53 Barb. 629; State v. Thompson, 2 Strob. (S. C.) 12; Carey v. Brooks, 1 Hill (S. C.), 365; Com'rs v. Taylor, 2 Bailey (S. C.), 282; McLaughlin v. Charlotte R. Co., 5 Rich. (S. C.) 593; Harrison v. Sterrett, 4 H. & McH. 540; Wroe v. State, 8 Md. 416; Baltimore v. Marriott, 9 Md. 160; Flynn v. Canton Co., 40 Md. 312; Walter v. County Com'rs, 35 Md. 385; South Carolina R. Co. v. Moore, 28 Ga. 398; Esson v. Wattier, 25 Oregon, 7; Dunn v. Stone, 2 Car. L. Rep. 261; Morgan v. Graham, 1 Woods, 124; L. T. Co. v. S. & W. R. Co., 41 Cal. 562. 1 Ibid.; Enos v. Hamilton, 27 Wis. 256. Erections in navigable waters, which are near the shore, and are not prohibited by any positive law or regulation, are presumed not to be obstructions to navigation, and he who alleges that they are obstructions must prove it. Dutton v. Strong, 1 Black, 23; Yates v. Milwaukee, 10 Wall. 497. 2 Baker v. Boston, 12 Pick. 184, 196; Atkins v. Boardman, 2 Met. 457; Houck v. Wachter, 34 Md. 265; Swanson v. Miss. Boom. Co., 42 Minn. 532; Baxter v. Winooski Turnpike Co., 22 Vt. 114; Hall v. Kitson, 4 Chand. (Wis.) 20; Green v. Nunnemacher, 36 Wis. 50; Carpenter v. Mann, 17 Wis. 155; Powers v. Irish, 23 Mich. 429; Dwinel v. Veazie, 44 Maine, 167, 175; Roseburg v. Abraham, 8 Oregon, 509; Farrelly v. Cincinnati, 2 Disney (Ohio), 516; Bristol Manuf. Co. v. Gridley, 28 Conn. 201; Taylor v. Monroe, 43 Conn. 36; Tomlinson v. Derby, id. 562. See South Carolina v. Georgia, 93 U. S. 4, 14; Smith v. McConathy, 11 Mo. 517; Welton v. Martin, 7 Mo. 307; Payne v. McKinley, 54 Cal. 532; Tibbetts v. Blade, 60 Cal. 428; Silva v. Spangler (Cal.), 43 Pac. Rep. 617. But it is not indispensable to a recovery that the injury shall be proved precisely as alleged. Memphis R. Co. v. Hicks, 5 Sneed, 427. And if a dec 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. "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 the portion of the laration in case defectively 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. 1 Ibid.; Houck v. Wachter, 34 Md. 265; Schall v. Nusbaum, 56 Md. 512; Gilbert v. Morris Canal Co., 8 N. J. Eq. 495; Miller v. Hare, 43 W. Va. 647; 39 L. R. A. 491 and note; State v. Bridges, 19 Wash. 44; 40 L. R. A. 593 and note. 2 Blackwell v. Old Colony R. Co., 122 Mass. 1; Blood v. Nashua R. Co., 2 Gray, 137; Lawrence v. Fairhaven, 5 Gray, 110; Brightman v. Fairhaven, 7 Gray, 271; Willard v. Cambridge, 3 Allen, 574; Hartshorn v. South Reading. id. 501; Wesson v. Washburn Iron Co., 13 id. 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 v. Lynn, 126 Mass. 367; Whitehead v. Jessup, 53 Fed. Rep. 707; Small v. Grand Trunk R. Co., 15 Q. B. (Can.) 283. 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 v. Johnson, 17 N. J. L. 129; Rowan v. Johnson, id. 154; Delaware Canal Co. v. Lee, 22 id. 243; Glover v. Pow 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. Same Same. 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 distin ell, 10 N. J. Eq. 211; Carson v. Coleman, 11 id. 106; Crittenden v. Wilson, 5 Cowen, 165; Steele v. Western Inland Lock Nav. Co., 2 Johns. 283. 1 Breed v. 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; Com. v. Boston & Maine Railroad, 3 Cush. 25; Boston & Worcester Railroad v. Old Colony Railroad, 12 id. 605. 3 Brewer v. Boston R. Co., 113 Mass. 52, 58; Com. v. Vermont R. Co., 4 Gray, 22; Wesson v. Washburn Iron Co., 13 Allen, 95; Brayton v. Fall River, 113 Mass. 218; Haskell v. New Bedford, 108 id. 208; Willard v. Cambridge, 3 Allen, 574; Harvard College v. Stearns, 15 Gray, 1; Clement v. Burns, 43 N. H. 609. 4 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 nuisance. Locks and Canals v. Lowell. 7 Gray, 223; Emery v. Lowell, 104 Mass. 13; Nichols v. Boston, guished the case from that of Harvard College v. Stearns,' 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 upon, or 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. But 2 98 id. 39; Eames v. New England Worsted Co., 11 Met. 570; Child v. Boston, 4 Allen, 41; Sherman v. Tobey, 3 id. 7; Boston Rolling Mills v. Cambridge, 117 Mass. 396; Boston v. Richardson, 19 How. 263; 24 id. 188; Gerrish v. Brown, 51 Maine, 256; Franklin Wharf v. Portland, 67 id. 46; Frink v. Lawrence, 20 Conn. 117; Clark v. Peckham, 9 R. L. 455; 10 id. 35; Gorton v. Tiffany, 14 id. 95; Att. Gen. v. Birmingham, 4 Kay & Johns. 528. 115 Gray, 1. 2 As when offensive sewage flows upon the plaintiff's land. Lind v. San Luis Obispo, 109 Cal. 340. 3 Ramez v. Southend Local Board, 67 L. T. 169; 8 T. L. R. 700; Brayton v. Fall River, 113 Mass. 218; Haskell v. New Bedford, 108 Mass. 208; Blackwell v. Old Colony R. 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. Dillystone, 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. Kleinhans, 2 Green (N. J.), 473; 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 R. Co., 27 Wis. 194; C. B. R. Co. v. Twine, 23 Kansas, 585; Frith v. Dubuque R. Co., 45 Iowa, 406; Park v. C. & S. W. R. Co., 43 Iowa, 636; Cowell v. Martin, 43 Cal. 605; Myers v. St. Louis, 8 Mo. App. 266; Lackland v. North Missouri R. Co., 31 Mo. 180; 34 Mo. 259; Price v. Knott, 8 Oregon, 438; Clark v. Peckham, 10 R. I. 35; 9 R. I. 455; Folsom v. Freeborn, 13 R. I. 200, 210; Clark v. Providence, 16 R. L. 337; Sullivan v. Webster, id. 33; Venard v. Cross, 8 Kansas, 248; Schulte v. North Pacific Transp. Co., 50 Cal. 52; Yolo County v. Sacramento, 36 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; Briggs v. Pfeil, 42 Pitts. L. J. 18; Harrison v. Sterrett, 4 Har. & McH. 540; Strauss's Case, 37 Md. 237; Garitee v. Baltimore, 53 Md. 422; Enos v. 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. when it is at a distance from the plaintiff's land, and the only injury which he sustains consists of inconvenience 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. A person suffering a peculiar and special damage from a public nuisance may maintain an action against the person who continues it, although a recovery for the injury done by its creation is barred by the statute of limitations.2 3 § 124. Same Same. 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, 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: a "This is not an action for obstructing the river, but for ob Harvard College v. Stearns, 15 Gray, 1; Transp. 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 R. Co., 4 Harr. (Del.) 389; McLaughlin v. Charlotte R. 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 R. 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 R. Co., 50 Cal. 190; Schulte v. North Pacific Transp. Co., 50 Cal. 592; George v. Northern Pacific R. Co., 50 Cal. 589; Bigley v. Nunan, 53 Cal. 403; Severy v. Central Pacific R. Co., 51 Cal. 194; Jarvis v. Santa Clara Valley R. Co., 52 Cal. 438; Folsom v. Freeborn, 23 Alb. L. Jour. 497; Kinealy v. St. Louis R. Co., 28 Am. Law Reg. 124; Har- 35 M. & G. 613; 6 Scott, N. R. 645; Wilkes v. Hungerford Market Co., 2 Bing. N. R. 281; Pentley v. Lynn Paving Com'rs, 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; Att. Gen. v. Conservators, 1 H. & M. 1; Kearns v. Cordwainers' Co., 6 C. B. N. s. 388; Att. Gen. v. Wemyss, 13 App. Cas. 192; Fritz v. Hobson, 14 Ch. D. 542; Moore v. Great Southern Ry. 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; French v. Conn. River Lumber Co., 145 Mass. 261; Wall v. Pittsburgh Harbor Co., 152 Penn. St. 427. 45 Man. & G. 613; 6 Scott, N. R. 645. |