Fogg v. Nevada-California-Oregon Railway

23 P. 840, 20 Nev. 429

• Court: Nevada Supreme Court
• Decided: January 5, 1890
• Docket: No. 1312.
• Status: Published

Opinion

By the Court,

Hawley, O. J.;

Action to restrain a nuisance. Demurrers to the complaint were interposed upon the grounds, (1) that the complaint does not state facts sufficient to constitute a cause of action; (2) that there is a misjoinder of parties plaintiffs; (3) that there is a misjoinder of causes of action. The demurrers were sustained, and judgment by default entered in favor of defendants for their costs. Plaintiffs appeal.

The complaint alleges that plaintiffs, Eogg, Brookins and Peterson, are the separate owners of three certain town lots in Reno; that each of said plaintiffs has a dwelling-house upon his lot, in which he resides with his family, consisting, among others, of children of tender years; that said premises abut and front. on East street, which runs at right angles to Third and Fourth streets — all public streets in the town of Reno; that Brookins’ lot abuts and runs for one hundred feet on the west side of East street; that Fogg’s and Peterson’s lots each abut and front for fifty feet on the east side of East street; that East street extends from Fourth-street on the north, to Third street on the south, a distance of four hundred feet; that East street, throughout its entire length, is of the uniform width of eighty feet; that since January, 1886, the “defendants, acting in concert, without authority of law, have wrongfully and unlawfully maintained, and do so now maintain, a steam railroad and railroad track of the width of three feet and four inches, in,, over and upon said East street, from the line of said Fourth-, street towards Third street, a distance of about two hundred! feet, and over and upon the aforesaid premises of plaintiffs;”' that in May, 1889, the defendants in the same manner built and constructed over and upon the premises of plaintiffs, on East street, a branch track of same width, “ from a point about thitry-five feet south of said Fourth street, southerly, in and upon said East street, a distance of about two hundred and thirty-five feet;” that said, tracks and railroad are a part of the general system of railroad communication for the carriage of freight and - passengers between Reno and the state of California; that the main track, as constructed on Bast street, runs in the center of said street from Fourth street on the north, a distance of seventy-five feet, at which point said track bifur. cates, one line running southwesterly, over and along Bast street, leaving it in a westerly direction at a point one hundred and seventy feet south of Fourth street; the other running in a southeasterly direction, leaving East street on the east side thereof, at a point about two hundred and seventy-five feet south of Fourth street, and north of Third street; that said tracks are laid on wooden lies imbedded in the soil, and are raised a height of from six to eight inches above the general level of the street; that said tracks and railroad so constructed and operated “ are an existing, continuing and constantly recurring common nuisance and obstruction in said East street;” that by reason thereof each of said plaintiffs has sustained special damages, and is obstructed “in the free and lawful use of his said premises, and the comfortable enjoyment of his life, and his said property is seriously interfered with;” that defendants, at divers times in the day and night, run their trains, “ rendering passage on said East street for vehicles and foot passengers, and especially for children of tender years, extremely dangerous, and thereby rendering the destruction by fire of each of said plaintiffs’ said dwelling-houses extremely probable by and from spai’ks of fire” from the locomotives; that the tracks and rail, road, so constructed, operated, and maintained, render the approach for vehicles to the front of each of plaintiffs’ residences “ extremely difficult and unsafe, and practically prevent and hinder the approach of Vehicles; that defendants almost daily leave freight-cars standing for hours at a time in front of plaintiffs’ residences, and unload freight of different kinds on East street, and use said street “to all intents and purposes as a freight depot, to the great annoyance and special damage of the plaintiffs, and each of them,” that “ said nuisance, trespasses, wrongs, and injuries so inflicted upon plaintiffs, and each of them, greatly decrease the value of said several lands and premises of plaintiffs, and each of them, to their irreparable damage;” that defendants threaten to continue the nuisance, etc. The prayer is for an. abatement of the nuisance, and for an injunction. No damages are asked.

Did the court err in sustaining the demurrers to this complaint? To enable the plaintiffs to maintain this action, it must be clearly shown that they have - sustained, or will sustain, a special and peculiar injury, irreparable in its nature, and different in kind from that sustained by the general public. Appellants, in order to avoid this rule, which is universal, claim that this action is based upon the provisions of section two hundred and fifty-one of the civil practice act, which, it is contended, changes the common-law rule upon this subject, and hence that the authorities from other states, based upon such rule, are not applicable to this case. The statute reads as follows: “ Anything which is injurious to health, of indecent and offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance, and the subject of an action. Such action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by the nuisance; and by the judgment the nuisance may be enjoined or abated, as well as damages recovered.” (Gen. Stat. 3273.) This statute, instead of changing, simply affirms the rule above stated. (Prosser v. City of Ottumwa, 42 Iowa, 511; Innis v. Cedar Rapids etc. Ry. Co., 76 Iowa, 167.) It was copied from the statute of California, and, prior to its adoption by the legislature of this state, the supreme court of that state, in construing the statute, held, in Blanc v. Klumpke, 29 Cal. 159, that if the nuisance complained of only affects “ the plaintiff in common with the public at large, although in a greater degree, he cannot have his private action.” This principle under the same statute was subsequently affirmed in Yolo Co. v. City of Sacramento, 36 Cal. 195, and in Grigsby v. Clear Lake Water Co., 40 Cal. 406. The contention of appellants, as to the construction of the statute, is untenable.

Appellants claim that the allegations of the complaint are sufficient to show that they have sustained damages special and peculiar to themselves, and different in character from that which is common to the public. It must be admitted that it is sometimes difficult to determine whether or not the alleged injuries caused by a common nuisance are of a kind that give to individuals a right of action. Among other things, regard must always be had to the locality where the alleged nuisance exists, as the application of certain facts might be different in large cities from that of smaller towns and villages, or in the-country-. The people in each locality, are, of course, equally entitled to the full protection of- the law; but the danger of fire, depreciation of property; deprivation of its enjoyment, inconvenience or annoyance in crossing a street or road, would be different in degree and kind in different localities. (Robinson v. Baugh, 31 Mich. 297; Sparhawk v. Union Pass. Ry. Co., 54 Pa. St. 430.) “ To enumerate all the special instances would be an endless, as well as utterly useless, task, for the fact tliat a nuisance has been restrained in one case furnishes no reason why it should be refused or granted in another, as each case must stand upon its own facts, circumstances and equities, and no definite or precise standard can be given.” (Wood Nuis., Sec. 809.) As the plaintiffs declined to amend their complaint after having been granted a reasonable time so to do, it must be presumed that the facts are stated in the complaint as strongly as they could be drawn in favor of the plaintiffs. The averment relative to the branch track does not merit any consideration, as it is not specific enough to enable us to determine whether or not any special injury,' other than is alleged by the construction of the main track, is occasioned thereby. Its exact location is left uncertain. It is not shown upon which side of the street or of the main track it runs, nor is it stated how far distant from the main track or from the sidewalk it is. The allegation of the complaint, relating to the danger from fire and to the depreciation in value of appellants’ property, are wholly insufficient to enable them to maintain this action thereon, for the reason that they are merely conclusions of law. No facts are stated which enable the court to determine whether there is any danger of fire from the locomotives attached to defendants’ cars. The mere running of railroad trains, propelled by steam, through the. public streets of a town, is not of itself sufficient to constitute a nuisance on account of the remote probability that a fire might be, at some indefinite time in the future, occasioned by sparks escaping from the locomotives, and igniting the buildings adjacent to the street. • It is not alleged that any sparks of fire’ have ever escaped; or that any fires have ever occurred from this cause, or that defendants are not using the most improved, appliances and the best means within their reach to prevent the destruction of property by fire. Courts do not deal with such .remote probabil-1 ities as 'are alleged in this averment. Something tangible and real, upon which opinions can be based ancT judgmentsj formed, must-be __stated. It is not enough to allege that thej party -fears such things might happen. He must state the faetsj upon which his fears are founded. The allegation with refer■ence to the depreciation in value of the lots owned by plaintiffs! is subject to the same objection. No facts are stated which| justify the conclusion drawn. No tenants have been lost, no sales; prevented. The question whether property adjacent to a street,1 upon which a railroad track is laid, is increased or decreased in value, depends upon the facts and circumstances surrounding each case. Conclusions are also drawn in certain other averments which are not supported by the facts stated. Injunctions ought not to be granted in cases of Ihis character, unless “ the threatened use of property or the act^ sought to be restrained is clearly shown to be such as leaves no doubt of its injurious results; such results as .are recognized j to be substantial legal injuries. The bill must set forth such ajf state of facts as leaves no room for doubt upon the question of| nuisance, for, if there is any doubt upon that point, the benefit will be given to the defendant. Mere allegations of conclusions or opinions as to the contemplated injuries are not sufficient. The precise manner in which he is to be injured must be stated.” (Garnett v. Jacksonville etc. Ry. Co., 20 Fla. 902.) In Lewiston T. Co. v. Shasta & W. W. R. Co., 41 Cal. 565, the court said, citing from previous cases, “ that when the damages are special —that is, such as do not necessarily arise, or are not implied by law, from the act complained of — the facts out of which the damages arise must be averred in the complaint.”

The allegations in the Complaint relative to the danger and difficulty of vehicles, foot-passengers and children of tender years passing to and from appellants’ residences, and on, along and over the street, constitute an annoyance and inconvenience which appellants suffer in common with the general public, and affords no ground for a private action. “ The courts very wisely have unswervingly adhered to the rule that an individual, in order to be entitled to a recovery for injuries sustained from a public nuisance, must make out a clear case of special dam.ages to himself, apart from the rest of the public and of a different character, so that they cannot faii-ly be said to be a part of the common injury resulting therefrom. It is not enough that he has sustained more damage than another; it. must he of a different character, special and apart from that which the public in general sustain, and not such as is common to every person who exercises the right that is injured.’' (Wood Nuis., Sec. 646.)

Appellants refer to several cases where the • courts have sustained the right of an individual or individuals to abate a public nuisance, and recover damages, on account of obstructions, caused by railroad cars standing in the streets, or so running along a street as to prevent egress and ingress to the property of the individual. The cases are too numerous to be reviewed at any length. We cite enough, however, to illustrate the-general principles upon which the distinctions referred to are-founded. In the recent case of Jackson v. Kiel, 13 Colo. 378, 16 Am. St. Rep. , the complaint alleged facts showing clearly “ that-the ingress and egress to and from plaintiff’s property by vehicles. was had solely by means of the intersection of Wyncoop street (in the city of Denver) with Tenth, — the street upon which his-lot fronts; in no different way, circuitous or otherwise, could, his premises be thus reached;” that the defendant “ kept a large number of railway cars on Wyncoop street, across the space of' its intersection with Tenth; that during the entire period covered by the complaint the obstruction thus created rendered it absolutely impossible for vehicles of any kind to reach plaintiff’s, premises.” These facts were held sufficient to show that “plaintiff' had suffered a special and peculiar private injury.” In Atchison S. Ry. Co. v. Nave, 38 Kan. 752, the respondents were the owners of large buildings used as warehouses fronting on Second stre t, in the city of Atchison, which street was only fifty feet wide. Thei e was a broad-gauge railroad in the center of the street, which of itself did not interfere with or injure the business of respondents. Appellants obtained the right of way to construct a street railway on Second street within fifteen feet of the sidewalks. The respondents, in the ordinary and usual transaction of their business, used transfer wagons twenty to twenty-two feet in length,, and seven and one-half feet wide. The laying down of the second track was such an obstruction of the streets as to interfere directly with the use of their buildings and the conducting of their business, and upon these facts the court said “ that the- injury resulting from the obstruction of the street is one that is special and peculiar to the plaintiffs below, and independent of and different from the general injury to the public.” In Neitzey v. Railroad Co., 5 Mackey, 34, the defendant, in addition to its main track on a street sixty feet in width, laid four other separate tracks, “ and, not content with passing over its main track, converted the whole street, to the width mentioned, to the purposes of a freight depot or station, by placing cars on those tracks, and allowing them to remain permanently, by loading and unloading -its cars, a great deal of the freight of which was of a very noxious and offensive character, such as manure, fertilizers, etc.; that it allowed cattle cars to stand there, and cars that had been used for the transportation of cattle, manure,’’ etc. The court very properly said that the railroad company was not authorized, under the acts of Congress, “ to convert the public highways, the streets and avenues of the city, into freight yards. The proper place for cars, when not in pse, is the depot,-station, or yard of the company, and the proper place to load and unload freight is a freight station;” yet, notwithstanding these facts, if the inconvenience resulting from them only affected the general public, it was held that it should only be treated as a public nuisance. “ But when these cars have been used for the conveyance of offensive matter, so as to infect the whole atmosphere with noxious odors, and when the freight loaded and unloaded there consists of similar material, and the process of bringing the ears there and taking them away for the purpose of loading and unloading, causes annoyance by jarring the neighboring houses, and the smoke from the engines penetrates the dwellings, all this then becomes more than a public nuisance — -it becomes a private nuisance,” actionable by individuals who have suffered this species of injuries.

From these and other authorities cited in the briefs of counsel, and from the discussion of the principles and review of the authorities, in "Wood on Nuisances, in chapter 19, relating to private actions for injuries from public nuisances, section- 645 et seq , and in chapter 25, relating to remedies in equity, section 777 et seq., it will readily be seen that the controlling principle which gives the right of action to private individuals to abate a public nuisance is the invasion, impairment, or destruction of a common right which they possess, independent, separate, and distinct from the rights enjoyed by the general public. If the alleged wrongful act is only an obstruction to the exercise and enjoyment of a right common to the public as well as to the individuals, then the remedy is by an information filed by the attorney general or district attorney on behalf of lhe public, or by indictment. But if the facts alleged and proven constitute an injury to the health, or is indecent or offensive to the senses, or create an obstruction to the right of enjoyment and use of the property of individuals which is common bo them, then the nuisance becomes as to them a private nuisance, constituting a special and peculiar injury, distinct from that of the public, for-which they can maintain an action, although such wrongs and injuries might also “so far affect the public as to be actionable by information or by indictment.

The averments under consideration -do not state facts sufficient to enable appellants to maintain this action. East street is eighty feet wide. The main track is in the center thereof, leaving ample room for foot-passengers and vehicles to pass each other on both sides of the track. The obstructions complained of do not prevent ingress or egress to the premises of appellants; do not invade any right or destroy the use of their property, or impair its value to any appreciable degree. They constitute an annoyance and inconvenience at times, to appellants and their families; to pedestrians and drivers of vehicles having occasion to travel on or across the streets at the places mentioned in the complaint. Appellants have the undoubted right to pass over the street, but the injury to them in being occasionally prevented from so doing is -an injury and danger also suffered by. the rest of the public. “It makes no difference, as to the remedy, that they would probably have mora occasion to use this part of the road than m'ost others would. 1 he injury still consists in their being deprived of the enjoyment of a common public right, which is not their private property. (Higbee v. Camden etc. R. R. Co, 19 N. J. Eq. 279; Hogan v. General Pacific R. R. Co., 71 Cal. 86; Wood Nuis., Sec. 646.) Mere inconvenience, such as is alleged in the complaint, is not sufficient to authorize the plaintiffs to maintain this suit. There must be an injury of such a character as to affect the ordinary use and enjoyment of the property of plaintiffs. It must be real and substantial. There must be an interference to a convenience that exists as a legal right in the plaintiffs distinct from the rights of the public. (Wood Nuis., Secs. 790, 800, 801; Sparhawk v. Union Pac. Railway Co., 54 Pa. St. 427, 430.)

The mere fact that the alleged inconvenience and annoyance is greater in degree to the plaintiffs than it is to other citizens does not authorize a private action to be maintained. “ All the authorities agree that, to support the action, the damage must be different, not merely in degree, but different in kind, from t. at suffered in common; hence it has been well settled that, though the plaintiff may suffer more inconvenience than other's from the obstruction, by reason of his proximity to the highway, that will not entitle him to maintain an action.” (Wood Nuis., Sec. 646; San Jose Ranch Co. v. Brooks, 74 Cal. 465; McCowan v. Whitesides, 31 Ind. 237; Hartshorn v. Inhabitants of South Reading, 3 Allen, 504; Clark v. Chicago etc. Ry. Co., 70 Wis. 597; 5 Am. St. Rep. 187; Wesson v. Iron Co., 13 Allen, 101; Proprietors etc. v. Newcomb, 7 Metc. 283; 39 Am. Dec. 778; Brainard v. Connecticut Riv. R. R. Co., 7 Cush. 510; Stetson v. Faxon, 19 Pick. 160; 31 Am. Dec. 123; Shaubut v. St. Paul etc. R. R. Co., 21 Minn. 504; Houck v. Wachter, 34 Md. 272; 6 Am. Rep. 332; Marini v. Graham, 67 Cal. 132, 133.)

There is but one other averment in . the complaint which requires any further discussion. It is the one principally relied upon by appellants as clearly showing a special and peculiar injury-to them, to wit: the averment that they respectively own the land in fee of said East street “to the middle thereof, in front of his said premises; said ownership in said street in said plaintiff being subject only to an easement in the general public for use for the ordinary purposes of a public street in said town of Reno.” Numerous authorities are cited to show that the law presumes such ownership indejiendent of any such averments in the complaint. Appellants, therefore, claim that they have such an interest in the street as to enable them to enjoin defendants from maintaining a railroad track and running cars thereon without their consent, “ without employing legal methods and making compensation therefor.” Admitting, for the purposes of this decision, (without considering the question,) that they own the land, as claimed, to the middle of the street, it is apparent that such an interest would only give them an individual right of action, and that, in relation to this averment, the other grounds of the demurrers are well taken. The rule is well settled that where the injury is common to several different property owners, they may all unite in one action for an injunction to restrain a private nuisance; but the injury here complained of is not of such a character.

We have referred to several cases like Reid v. Gifford, 1 Hopk. Ch. 419, where several proprietors of distinct lands and mills, and of separate parts of a natural water-course, were permitted to join in one suit for a common injury to their property. The correctness of that principle is not questioned. We have already stated that the rule governing such cases is well settled. In Shultz v. Winter, 7 Nev. 133, this court had occasion to distinguish the facts in that case from those mentioned in Reid v. Gifford, and in deciding that the demurrer to the complaint was well taken, said: “The complaint not only fails to show any community of interest between the plaintiffs, but clearly negatives any common interest. * * * They ask, not that the waters of the creek may flow over their lands in their natural channel, but that each, * * * may divert, use, and dissipate certain specified portions thereof.”

The1 injury to- the lands of plaintiffs, which we are now considering, is not a common injury to them. There is no community of interest between the plaintiffs in regard thereto. The-injury to the fee of Fogg, as the owner of a town .lot, is an individual injury to him. Neither Brookins nor Peterson have any interest in the land owned by Fogg, and hence cannot recover for any injury which simply relates thereto. So of each of the parties. In the cases where injunctions were issued upon the ground of plaintiff’s interest in the land to the middle of the-street, the actions were brought by the individual owner or owners, of the land. In Hinchman v. Patterson H. R. R. Co., 17 N. J. Eq. 82, the complainants were, as here, respectively, the owners of lots-abutting on the street, and claimed title to the middle of the street, and sought to enjoin the construction of defendant’s railroad, upon the ground, among others, that it was taking the property of complainants for public use, ‘ without just compensation.’ ” The court, after stating the presumption of law to be “ that the owners of the land on each side of the street own to the middle of the street, and have the exclusive right to the soil, subject to the right of way,” said: “The bill is objectionable on the ground of a misjoinder of parties. The complainants are owners of several and distinct lots, having no common interest, but seeking to enforce sevei-al and distinct claims They seek to enforce no common right, as in case of right of common, nor to obtain relief against a common wrong. * * * The bill seems to have been framed under the impression that the nuisance was a grievance common to all the land-owners, and therefore that all might properly be joined. But each complainant seeks relief for special injury to his own property by the construction of the railroad. On this ground the bill is clearly demurrable. See, also,. Tate v. Ohio etc. R. R. Co., 10 Ind. 174; 71 Am. Dec. 309; Dicey Parties, Rule 78, p. 347; Id., Rule 80, p. 401; Morris etc. R. R. Co. v. Prudden, 20 N. J. Eq. 539: Demarest v. Hardham, 34 N. J. Eq. 472.)

The judgment of the district court is affirmed.