Blackwell v. Old Colony Railroad

122 Mass. 1, 1877 Mass. LEXIS 62

• Court: Massachusetts Supreme Judicial Court
• Decided: January 23, 1877
• Status: Published

Opinion

Gray, C. J.

The act of the defendant, for which the plaintiff in various counts seeks compensation, is the building of a bridge across a navigable stream and arm of the sea. The direct injury alleged is to the navigation of the stream, to which the plaintiff is entitled only in common with the whole public; and the remedy for that injury is by indictment, and not by private action. The fact that the plaintiff alone now navigates the stream, or has a wharf thereon at which he carries on business, only shows that the present consequential damage to him may be greater in degree than to others, but does not show that the injury is different in kind, or that other riparian proprietors and the rest of the public may not, whenever they use the stream, suffer in the same way. The case 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. Blood v. Nashua & Lowell Railroad, 2 Gray, 137. Lawrence v. Fairhaven, 5 Gray, 110. Brightman v. Fairhaven, 7 Gray, 271. Willard v. Cambridge, 3 Allen, 574. Wesson v. Washburn Iron Co. 13 Allen, 95. Brayton v. Fall River, 113 Mass. 218. Lyon v. Fishmongers' Co. 1 App. Cas. 662. Judgment affirmed.