The opinion of the Court was delivered by
Mr. Justice Gary.
The appeal herein is from a decree of his Honor, the Circuit Judge, which will be set out in the report of the case.
The first question that will be considered is whether the plaintiffs, under the facts of the case, have the right to- invoke the aid of the Court in the exercise of its chancery powers. The master, to whom the issues of fact were referred, made his report, in which he found the following facts:
“6. That the plaintiff, E. W. Robertson, is now and was before the commencement of this action a resident and taxpayer of the city of Columbia, and the owner of two- acres of land situate at the corner of Assembly and'Laurel streets, on the top of Haskell’s or Taylor’s Hill. That the said premises are separated from the park by Laurel street and by a triangular lot of land bounded by Laurel and Assembly streets, and is distant three or four hundred feet from the park, and ‘overhangs’ the park with an unobstructed view thereof, and its situation with reference to the park as it stood at the time of the commencement of this action materially enhanced its value, and'the same were purchased by Judge Haskell, its former owner,.and E. W. Robertson, one of the plaintiffs herein, with reference to> the park, opened and maintained and labelled with a sign placed over its gates
by the city as a public park; and prior to. the commencement of this action, while in that condition, the said plaintiff had commenced the erection of a residence on his said premsies, and had expended large sums of money ($12,000) for plans and materials in building the same, which said premises as. a residence will be materially injured by the establishment olf a railroad station in the park.
“7. That from the conformation of the ground, the house being on the top of the hill and the park in the valley, the house overhangs the park, and is peculiarly susceptible to the damage that would be caused by smoke, soot, dust and noise inseparable from a railroad yard and freight and passenger station.
“8.
That the plaintiff, C. H. Manson, was at the time of the commencement of this action and is now a resident and taxpayer of the city of Columbia, and the owner of a residence at the corner of Gates and Raurel streets, abutting on the Palmetto road, which is the public road laid around the park; which said house is about sixty feet from said park enclosure and overlooks the park, and has an unobstructed view of and over the same, and was purchased by the said plaintiff with reference to. the said park, and while the same was opened and maintained and labelled by a sign placed over its gates by the city as a public park.”
It will thus be seen that neither E. W. Robertson nor C. H. Manson was an abutting landowner on the land designated as a park, nor that they have sustained injuries different in kind from those which might reasonably be expected would be suffered by those in the neighborhood, although differing in degree.
The question under consideration is so conclusively settled by the case of
Cherry
v.
Rock
Hill, 48 S. C., 553, that the Court might with propriety rest its decision on that authority. We will, however, cite others. The rule in such cases is thus stated in sections 1298 and 1301 of Hightower on Injunctions : “Sec. 1298. The question of the degree of interest in the subject-matter which is requisite to. render one
a proper party plaintiff, to institute an action for the purpose of restraining misconduct on the part of municipal corporations or their officers, is one of much practical importance and deserving of special attention. In general it may be said that to- warrant the interference of equity in this class of cases, the aggrieved party must show that some special and peculiar injury, personal to himself, is likely to result from the act complained of, aside from the general injury to the public. And while some conflict of authority exists as to what constitutes such special injury as will warrant a court of equity in interfering, the better doctrine is, that taxpayers of a municipal corporation, as a city or county whose burdens of taxation are increased by the misappropriation of public funds by municipal officers, or by other official misconduct on the part of such officers, sustain such' special damage as to entitle them to- relief. Thus, the enforcement of a city ordinance which is unconstitutional and void, and which seeks to- impose a debt upon the city, may be enjpined by property owners and taxpayers of the city. So where a board of county commissioners are proceeding without authority of law to appropriate county funds in aid of the construction of a railway, a taxpayer of the county has such an interest in the public funds as enables him to- maintain a bill for an injunction. And since the municipal government of a city or town is intrusted with the control and disposition of municipal affairs for the benefit and protection- of its citizens and taxpayers, they are the proper parties to- a bill for an injunction against the improper exercise of a municipal authority.”
“Sec. 1301. Although the general doctrine that taxpayers are proper parties to invoke equitable relief against misconduct upon the part of municipal authorities, is thus seen to- be well established, it is not to be understood that they are entitled to maintain an action in all cases of this nature, regardless of their personal interest, or of th-e degree of injury which they may sustain. And where, under a general power in a city -charter to- establish and regulate markets, the corpo
rate authorities of the city are about to remove a market house, taxpayers, as such, have no sufficient ground for enjoining the removal, whatever may be the rights of adjacent proprietors and others injuriously affected thereby. So a taxpayer in a city, who files a bill in behalf of himself and other taxpayers to enjoin the city from selling a public park or square, is not entitled to the relief when he has no land abutting- upon the square, and when he has no private interest involved other than or different from the body of taxpayers.”
In io Am. & Eng. Enc. of PI. & Prac., 897-900, the general doctrine is thus announced:
“In Suits to Unjoin Public Mischief
— (1)
Private Individuals as Plaintiffs
— Statement
of the General Rule.
— It is settled by numerous authorities, English and American, that a suit for an injunction ta restrain apprehended wrongs against the public cannot be maintained by a citizen on the ground that his interest and rights as a member of the State will be interfered with or disturbed, where the injuries which he apprehends are of the same kind as those which will be sustained by the people at large; and this rule has been rigidly adhered to in a great variety of cases,
e. g.,
suits to restrain public nuisances., purpnestures, obstruction of highways, official delinquencies, 'and usurpations of corporate powers.
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The opinion of the Court was delivered by
Mr. Justice Gary.
The appeal herein is from a decree of his Honor, the Circuit Judge, which will be set out in the report of the case.
The first question that will be considered is whether the plaintiffs, under the facts of the case, have the right to- invoke the aid of the Court in the exercise of its chancery powers. The master, to whom the issues of fact were referred, made his report, in which he found the following facts:
“6. That the plaintiff, E. W. Robertson, is now and was before the commencement of this action a resident and taxpayer of the city of Columbia, and the owner of two- acres of land situate at the corner of Assembly and'Laurel streets, on the top of Haskell’s or Taylor’s Hill. That the said premises are separated from the park by Laurel street and by a triangular lot of land bounded by Laurel and Assembly streets, and is distant three or four hundred feet from the park, and ‘overhangs’ the park with an unobstructed view thereof, and its situation with reference to the park as it stood at the time of the commencement of this action materially enhanced its value, and'the same were purchased by Judge Haskell, its former owner,.and E. W. Robertson, one of the plaintiffs herein, with reference to> the park, opened and maintained and labelled with a sign placed over its gates
by the city as a public park; and prior to. the commencement of this action, while in that condition, the said plaintiff had commenced the erection of a residence on his said premsies, and had expended large sums of money ($12,000) for plans and materials in building the same, which said premises as. a residence will be materially injured by the establishment olf a railroad station in the park.
“7. That from the conformation of the ground, the house being on the top of the hill and the park in the valley, the house overhangs the park, and is peculiarly susceptible to the damage that would be caused by smoke, soot, dust and noise inseparable from a railroad yard and freight and passenger station.
“8.
That the plaintiff, C. H. Manson, was at the time of the commencement of this action and is now a resident and taxpayer of the city of Columbia, and the owner of a residence at the corner of Gates and Raurel streets, abutting on the Palmetto road, which is the public road laid around the park; which said house is about sixty feet from said park enclosure and overlooks the park, and has an unobstructed view of and over the same, and was purchased by the said plaintiff with reference to. the said park, and while the same was opened and maintained and labelled by a sign placed over its gates by the city as a public park.”
It will thus be seen that neither E. W. Robertson nor C. H. Manson was an abutting landowner on the land designated as a park, nor that they have sustained injuries different in kind from those which might reasonably be expected would be suffered by those in the neighborhood, although differing in degree.
The question under consideration is so conclusively settled by the case of
Cherry
v.
Rock
Hill, 48 S. C., 553, that the Court might with propriety rest its decision on that authority. We will, however, cite others. The rule in such cases is thus stated in sections 1298 and 1301 of Hightower on Injunctions : “Sec. 1298. The question of the degree of interest in the subject-matter which is requisite to. render one
a proper party plaintiff, to institute an action for the purpose of restraining misconduct on the part of municipal corporations or their officers, is one of much practical importance and deserving of special attention. In general it may be said that to- warrant the interference of equity in this class of cases, the aggrieved party must show that some special and peculiar injury, personal to himself, is likely to result from the act complained of, aside from the general injury to the public. And while some conflict of authority exists as to what constitutes such special injury as will warrant a court of equity in interfering, the better doctrine is, that taxpayers of a municipal corporation, as a city or county whose burdens of taxation are increased by the misappropriation of public funds by municipal officers, or by other official misconduct on the part of such officers, sustain such' special damage as to entitle them to- relief. Thus, the enforcement of a city ordinance which is unconstitutional and void, and which seeks to- impose a debt upon the city, may be enjpined by property owners and taxpayers of the city. So where a board of county commissioners are proceeding without authority of law to appropriate county funds in aid of the construction of a railway, a taxpayer of the county has such an interest in the public funds as enables him to- maintain a bill for an injunction. And since the municipal government of a city or town is intrusted with the control and disposition of municipal affairs for the benefit and protection- of its citizens and taxpayers, they are the proper parties to- a bill for an injunction against the improper exercise of a municipal authority.”
“Sec. 1301. Although the general doctrine that taxpayers are proper parties to invoke equitable relief against misconduct upon the part of municipal authorities, is thus seen to- be well established, it is not to be understood that they are entitled to maintain an action in all cases of this nature, regardless of their personal interest, or of th-e degree of injury which they may sustain. And where, under a general power in a city -charter to- establish and regulate markets, the corpo
rate authorities of the city are about to remove a market house, taxpayers, as such, have no sufficient ground for enjoining the removal, whatever may be the rights of adjacent proprietors and others injuriously affected thereby. So a taxpayer in a city, who files a bill in behalf of himself and other taxpayers to enjoin the city from selling a public park or square, is not entitled to the relief when he has no land abutting- upon the square, and when he has no private interest involved other than or different from the body of taxpayers.”
In io Am. & Eng. Enc. of PI. & Prac., 897-900, the general doctrine is thus announced:
“In Suits to Unjoin Public Mischief
— (1)
Private Individuals as Plaintiffs
— Statement
of the General Rule.
— It is settled by numerous authorities, English and American, that a suit for an injunction ta restrain apprehended wrongs against the public cannot be maintained by a citizen on the ground that his interest and rights as a member of the State will be interfered with or disturbed, where the injuries which he apprehends are of the same kind as those which will be sustained by the people at large; and this rule has been rigidly adhered to in a great variety of cases,
e. g.,
suits to restrain public nuisances., purpnestures, obstruction of highways, official delinquencies, 'and usurpations of corporate powers. It has been held that it requires some individual interest distinct from that which belongs to every inhabitant of a municipal corporation, to give one of such inhabitants a standing in Court, where it is an alleged delinquency in the administration of public affairs which is called in question; and there are cases in which it has been- maintained that the fact of owning taxable property is not such a peculiarity as to take the case out of the rule; as all property, with very limited exceptions, is taxable, and every one either has or is capable of acquiring property.
The Reason for the Rule.
— The rule is not a technical and arbitrary one, but has a solid foundation of principle and is sustained by the very spund reasons of public policy, the object of the rule being to protect the defendant against a multiplicity of
suits and to secure him in one suit a final determination of all the controverted questions involved.
When Private Individuals may be Plaintiff.
— Although the rule is firmly established that a suit to- enjoin public mischiefs of whatever character must in general be instituted by or on behalf of the sovereign of the State, it is equally well settled that a private individual is a proper party plaintiff where the injuries which he will sustain are special and particular, differing in kind and not merely in degree from those which the public at large will suffer.” See, also-, the case of
Baltzeger
v.
Ry. Co.,
54 S. C., 242. From the foregoing authorities we are satisfied that the plaintiffs have failed to show such facts as entitle them to equitable relief.
Having reached this conclusion, all the questions presented by the defendant’s exceptions become merely speculative and need not be considered.
The plaintiffs, E. W. Robertson and C. H. Manson, also appealed on the ground that his Honor erred in failing to enjoin perpetually the operation of trains and the maintenance of a station in Sidney Park. As hereinbefore stated, the plaintiffs under the facts of the case are not entitled to the equitable aid of the Court.
The plaintiffs also gave notice that they would ask this Court to sustain the decree of the Circuit Court on the additional grounds, to wit: That the city of Columbia held Sidney Park in trust for the use thereof as a public park by all of its citizens, who thereby had the right as
cestuis que trustent
to invoke the aid of the court of equity in behalf of themselves and other citizens of Columbia to enjoin a destruction of the trust and an interference with its full and free use. These additional grounds are disposed of by what was said in considering the other questions.
It is the judgment of this Court, that the judgment of the Circuit Court be reversed, and the complaint dismissed.
Mr. Justice Pope
concurs in the result.