poration is under legal obligation to repair streets, and an indictment will lie against it for not repairing, and, in consequence of their suffering a street to be out of repair, individuals sustain damages by injuries to person or property, an action will lie against the corporation. So, where the plaintiff was delayed on his journey, and obliged to take a more circuitous route, by the defendant's shutting a gate across a highway; held, he might maintain an action on the case. So, although an action will not lie by an individual for an obstruction in a public highway, unless he sustain a particular damage; yet, if the plaintiff state, that the defendant obstructed, &c., by a ditch and gate across the road, by which the plaintiff was obliged to go a longer and more difficult way, and that the defendant opposed him in attempting to remove the nuisance, this is a sufficient damage to support the action. So an action lies for nuisance, where the plaintiff was obliged, in consequence of an obstruction of a public road, to carry his tithes by a longer and more inconvenient way, the Court remarking that the labor and pains, which the plaintiff had been forced to take with his cattle and servants by reason of the obstruction, might be of more value than the loss of a horse, which was sufficient to support an action.4 12. A familiar application of the rule upon this subject, is the case of an injury to trade or business, caused by some alteration or obstruction in a highway. In connection with a case of this description it is said: "For an injury which affects all his Majesty's subjects in common, the only mode of proceeding is by indictment; for any special injury which affects an individual beyond his fellows, he may obtain redress by action. The injury to the subjects in general is, that they cannot walk in the same track as before, and for that cause alone an action on the case would not lie; but the injury to the plaintiff is the loss of a trade, which, but 1 Hutson v. New York, 5 Sandf. 289. 2 Greasly v. Codling, 9 Moore, 489. 8 Chichester v. Lethbridge, Willes, 71. 4 Hart v. Bassett, T. Jones, 156. for this obstruction to the general right of way, he would have enjoyed; and the law has said, from the Year-Books downwards, that, if a party has sustained any peculiar injury, beyond that which affects the public at large, an action will lie for redress. Is the injury in the present case of that character or not? The plaintiff, in addition to a right of way which he enjoyed in common with others, had å shop on the roadside, the business of which was supported by those who passed-all who passed had the right of way, but all had not shops." So, the defendant having erected a warehouse, projecting several feet into the street, and beyond the plaintiff's warehouse, standing nearly on the line of the street, whereby the latter was obscured from the view of passengers, travel diverted from it, and it was rendered less eligible as a place of business, and the plaintiff was obliged to reduce the rent; held, the plaintiff might maintain an action. So in case, the declaration stated, that the plaintiff was possessed of a public-house, abutting upon a navigable river; and that the defendant wrongfully and maliciously placed upon the river and kept there for a long time certain timbers, so as to drift opposite the plaintiff's house, whereby the access thereto was obstructed, and persons, who would otherwise have come to the house and taken refreshments there, were prevented. Plea, not guilty. Held, upon motion for a new trial for misdirection, that it was not a question for the jury whether the plaintiff had sustained any special damage; and, on motion in arrest of judgment, that the declaration did not seem to allege any public nuisance; and, at any rate, it disclosed a private injury to the plaintiff. So in case of an unauthorized city railroad, which is a public nuisance, individuals specially injured, in the access to and from their places of business on the street, may maintain an application for injunction. So under ancient deeds, recognizing a right in the owner of an 1 Wilkes v. The Hungerford, &c. 2 Bing. N. C. 281. 2 Stetson v. Faxon, 19 Pick. 147. See Squier v. Gould, 14 Wend. 159. 3 Rose v. Groves, 5 M. & Gr. 613; 4 Scott, N. 645. 4 Wetmore v. Story, 22 Barb. 414. See also, Mayor, &c. v. Marriott, 9 Md. 160; Barnes v. Racine, 4 Wis. 454. estate to have a weir across a river for taking fish; if such weir was heretofore made of brushwood, through which the fish might escape into the upper part of the river, he cannot convert it into a stone weir, though in flood times the fish may overleap it; and though the enhancing, straitening, or enlarging of an ancient weir, as well as the new erection of one, for the purpose of thus stopping fish, is treated as a public nuisance by Magna Charta, c. 23, and 12 Ed. IV. c. 7; and though forty years ago two thirds of the weir in question had been so converted without interruption; an action for the injury may be brought within twenty years.1 So the keeping of a large quantity of gunpowder in a wooden building, insufficiently secured, and situated near other buildings, thereby endangering the lives of persons residing in the vicinity, is a public nuisance. But, if an explosion occur in consequence of the burning of the building, an individual wounded or injured by it may maintain an action, though the fire was not occasioned by the negligence of the owner. And, upon a somewhat analogous principle, a window frame, erected on a party-wall, was held not to be a common nuisance within the 14th Geo. III. c. 78, so as to deprive the owner of it of his right to the windows, being ancient lights; and, if it were, it would not, without conviction, be an answer to an action for obstructing them.8 13. It need hardly be added, that the rule in question is not so strictly construed, as to preclude a private action, merely because other persons than the plaintiff experience the same annoyance or injury from the act complained of which is sustained by him. (a) Thus, if by means of blast 1 Weld v. Hornby, 7 E. 195. 3 Titterton v. Conyers, 1 Marsh. 140. (a) Where a nuisance is a common, although not a joint injury to several persons residing in the neighborhood, they may unite in a bill to restrain it. Brady v. Weeks, 3 Barb. 157.. But, if the bill contains a further prayer for their respective damages, it will be multifarious. Ibid. But the objection may be obviated, by striking out this part of the bill. ing rocks "all persons on or about the premises of the plaintiff were kept in continual fear and jeopardy of their lives, rendering a proper attention to business full of fear and danger," &c., it would constitute a nuisance, and proper ground for an action on the case.1 So an action on the case lies against a railroad company, for running their cars and engines, ringing bells, blowing off steam, and making other noises in the neighborhood of a church or meeting-house, on the Sabbath, and during public worship, which so annoy and molest the congregation, as greatly to depreciate the value of the house, and render it unfit for a place of worship.2 1 Scott v. Bay, 3 Md. 431. * First Baptist Church in Schenectady v. The Schenectady & Troy Railroad Co. 5 Barb. 79. 1. HAVING Considered torts or wrongs in their connection with contracts and with crimes, we now proceed to inquire, for what particular wrongful acts or omissions an action may be maintained, or what are the necessary elements of a tort. 2. Upon this subject it is suggested, that the absence of any precedent for a particular action, especially where there must have been many occasions for bringing it, is a good, though not conclusive reason for not maintaining such action.1 But, on the other hand, it was remarked in an early English case, "It is said this action was never brought before; I wish never to hear this objection again. This action is for a tort; torts are infinitely various, not limited or confined; for there is nothing in nature but may be an instrument of mischief." 2 And the conflicting opinions of different Judges, even in the same case, show that the point 1 Anthony v. Slaid, 11 Met. 291; Carey v. Berkshire, &c. 1 Cush. 478; Costigan v. The Mohawk, &c. 2 Denio, 2 Per Pratt, Ch. J., Chapman v. Pickersgill, 2 Wils. 145. |