O'Brien v. Norwich & Worcester Rail-Road

17 Conn. 372

• Court: Supreme Court of Connecticut
• Decided: July 15, 1845
• Status: Published

Opinion

Waite, J.

This bill is brought by a private individual, praying for an injunction against the extension of the defendants’ rail-road across the Poquetannuck cove, an arm of the sea.

In a very recent case, we had occasion to examine the principles which govern courts of equity in cases of this kind; and after a careful examination of the authorities, we held, that a bill in equity will not be entertained for an injunction against a public nuisance, unless it shows that the plaintiff will sustain a special or peculiar damage from it, an injury distinct from that done to the public at large. Bigelow v. The Hartford Bridge Company, 14 Conn. R. 565.

Having so decided, it becomes unnecessary again to review the authorities, upon which that decision was based, and the other cases that might be cited. And were it now an open question, we have heard nothing since the former decision, which would induce us to hold a different opinion. The rule, therefore, must be considered as settled. It only remains then to inquire, whether the injury of which the plaintiff complains, is a public nuisance; and if it is, whether he has shown any special damage, by which his case can be relieved from the operation of that rule.

1. As to the character of the injury, which the defendants were about to commit. It is averred in the bill, that the cove is an arm of the sea, in which the tide ebbs and flows, communicating with the ocean, through the river Thames, a navigable river ; that the waters of the cove are navigable, and from time immemorial have been used and enjoyed as navigable waters ; and that the plaintiff and all other persons, at their pleasure, have been used and accustomed to pass and repass up and down the cove, into the river Thames, to the main ocean or elsewhere, in boats, scows, schooners or other vessels, without molestation or obstruction proceeds to state, that the defendants are engaged in extend The bill then ged in extending their road across the cove, near the mouth of the same, and where it opens into the river Thames; and that, by means * * of the road so extended, the navigation of the cove will be greaj]y obstructed, and rendered almost wholly useless,

According to the allegations, the road becomes a public nuisance, obstructing the free navigation of the waters of an arm of the sea, affecting all who may have occasion to pass and repass upon these waters.

2. If this road, when built, will become a public nuisance upon the cove, the next inquiry is, what special damage will the plaintiff sustain — what injury distinct from that done to the public at large? He says, that the right to pass up and down that cove, is a common right, the enjoyment of which is valuable to the plaintiff, both in respect to trade and commerce, the building and launching of vessels, and for agricultural purposes and fisheries; and that he is in danger of being deprived of his lawful right to navigate the same, unless relieved by (lie court as a court of equity. The same injury might result to every other citizen, who might have occasion to pass up and down that cove for similar purposes. He does indeed state, that his residence is in the village, at the head of that cove ; but he complains of no injury that will be done to his house, his wharf, or his land, by means of the defendants’ road. He will be merely deprived of the enjoyment of a right to navigate public waters, common to him and all others, as he otherwise might. For such an injury it is for the government to interfere, and not a private individual. The court could then look at the rights of the whole community, and not, as in the present case, to those of a single individual.

Upon the allegations contained in the plaintiff’s bill, we are of opinion, that he is not entitled to relief; and we therefore advise the superior court to dismiss the bill.

In this opinion the other Judges concurred, except Church, J., who was not present.

Bill dismissed.