1867 WINTERBOTTOM V. was therefore not bound by these acts, and that no dedication by him or his ancestors of the footway to the public could be presumed from them. But the learned judge told the jury that, LORD DERBY. from long continued user, going back indeed as far as living memory could go, they were at liberty, if they pleased, to infer a dedication of the footway to the public, by Lord Derby's ancestor, at a time antecedent to the land being on lease. The jury found a verdict for the plaintiff, and leave was reserved to the defendant to move to enter a nonsuit, on the ground that the plaintiff had not given sufficient evidence of damage to entitle him to maintain the action. April 17. Temple, Q.C. (Jones, Q.C., and J. A. Russell, with him), moved accordingly, and in arrest of judgment, on the ground that the declaration did not allege any sufficient cause of action; and also for a new trial, on the ground that the verdict was against the weight of the evidence, and of misdirection on the part of the learned judge in this, that he told the jury they might presume a dedication of the public footway against the defendant, the reversioner, from acts of user in the period during which the land had been on lease. In support of this last point he cited Wood v. Veal (1), where it was held that there could be no dedication of a way to the public by a tenant for ninety-nine years, without the consent of the owner of the fee, and that permission by the tenant would not bind the reversioner after the expiration of the term. In that case there had been user as far back as living memory went. He also cited Baxter v. Taylor. (2) The Court (Kelly, C.B., Martin, Bramwell, and Pigott, BB.), without desiring to cast any doubt on the authorities cited, thought that there had been no misdirection, and on that point, therefore, refused the rule. On the remaining points they granted a rule. June 1, 6. James, Q.C., Quain, Q.C., and R. G. Williams, shewed cause. The plaintiff suffered an inconvenience peculiar to himself. He resided in the neighbourhood of the path, and his most direct road to a place to which he had frequent occasion to (1) 5 B. & A. 454. (2) 4 B. & Ad. 72. go, was along it. Then by the obstructions he was delayed, either whilst he had them removed, or by being forced to go a roundabout way to his destination. He is thus damaged beyond the rest of the public. [KELLY, C.B. But he is not damaged more than others of the public who may happen to pass along the way. The result of this argument would seem to be that every individual who attempted to pass along this path could bring an action.] Every one actually obstructed, and who is driven either to go back or is delayed whilst removing the obstruction could maintain an action; and if it be said. this would lead to a multiplicity of actions, the answer is, that the person causing the obstruction would have brought them on himself. An indictment for obstructing a highway is grounded on the possibility, and not the fact, of the public being prevented from using it; but any one who suffers, personally, positive inconvenience from the obstruction need not have recourse to an indictment. He can maintain his action for the personal injury he has sustained: Com. Dig. Action for Nuisance (C.) 294; Meynell v. Saltmarsh (1); Hart v. Bassett (2); Iveson v. Moore (3); Rose v. Miles (4), explaining Hubert v. Groves (5); Rose v. Groves. (6) [CHANNELL, B. The principle laid down in Iveson v. Moore (3), and the other cases, is sound. The question is, as to the proper mode of applying it.] That principle is, that delay, however caused, whether in removing the obstruction or going a less convenient way, is a cause of action: Greasley v. Codling (7); Wiggins v. Boddington. (8) In Chichester v. Lethbridge (9), the action was held to be maintainable on either of two grounds. First, because the defendant had offered personal opposition to the nuisance being abated; and secondly, because the plaintiff had been delayed; and Erle, C.J., is in error in stating in Ricket v. Metropolitan Railway Company (10) that the decision rested on the first ground only. [CHANNELL, B. That ground seems the more intelligible. The 1867 WINTER BOTTOM v. LORD DERBY. 1867 WINTER- LORD DERBY. plaintiff in that case was prevented from abating the nuisance, and was thus entitled to bring his action.] The decision of Willes, C.J., rests distinctly on both grounds. Temple, Q.C., Jones, Q.C., and J. A. Russell, in support of the rule. All the cases cited are distinguishable. In all of those in which the action has been held maintainable the plaintiff has suffered a greater inconvenience than the rest of the public, who are obstructed in the exercise of their right; see per Erle, C.J., in Ricket v. Metropolitan Railway Company. (1) Thus, in Hart v. Bassett (2), the plaintiff was prevented from carrying home tithes. But in Paine v. Partrich (3), where the plaintiff's damage, as here, was a short delay, it was held that this injury, not being beyond that suffered by the public in general, was not actionable. The rule of law is accurately laid down by Lord Ellenborough, C.J., in Rose v. Miles (4), who says that the damage must be "something substantially more injurious" to the individual than to other people. In the present case the plaintiff neither proved nor alleged such substantial injury. KELLY, C.B. The substantial point for our decision in this case is whether this action is maintainable. The rule of law on the subject, which is well laid down in the case of Ricket v. Metropolitan Railway Company (5), is, that in order to entitle a plaintiff to maintain an action, he must shew a particular damage suffered by himself over and above that suffered by all the Queen's subjects. I will refer to one or two authorities in support of this proposition. The leading case is that of Iveson v. Moore (6); and it is laid down there by Lord Holt that there must be a particular damage done to a particular person in order to found an action, otherwise there would be danger of a multiplicity of actions. It was observed, indeed, during the argument, that people must be careful not to violate the law, and if they do so, they must take the consequences. Observe, however, to what this argument may lead. It often, for some reason or other, becomes absolutely necessary to set up an (1) 5 B. & S. at p. 159; 34 L. J. (2) Sir T. Jones, 156; 4 Vin. Abr. 519. (4) 4 M. & S. at p. 102. (5) 5 B. & S. 156; 34 L. J. (Q.B.) 257. (6) 1 Ld. Raym. 486, 1867 WINTER BOTTOM v. obstruction in a highway. For example, commissioners of sewers, gas companies, or commissioners for draining, paving, or lighting may be obliged for a time to obstruct a highway. Now, suppose it were to turn out that there was some want of authority for the LORD DERBY. appointment of the commissioners, or some unintentional deviation from the statutory powers conferred on them, they would of course be liable to an indictment for wrongfully obstructing the highway. But if we were to hold that everybody who merely walked up to the obstruction, or who chose to incur some expenses in removing it, might bring his action on the case for being obstructed, there would really be no limit to the number of actions which might be brought. Again, let us look further at the general nature of the cases where an action for obstruction has been held to be maintainable. In Iveson v. Moore (1), the plaintiff was the possessor of a colliery, and was obliged, in order to obtain the profits of his trade, to take laden carts and waggons, almost every day, along a certain highway. Then, by reason of that highway being obstructed, he personally sustained pecuniary damage. That was clearly special damage to the plaintiff alone. Once more, look at another case— a case which apparently makes most for the plaintiff—I refer to Hart v. Bassett. (2) There the plaintiff, There the plaintiff, a farmer of tithes, was prevented, by the defendant's obstruction, from carrying them home, and the obstruction must have been attended with considerable loss to the plaintiff. He had to take tithe, and he was liable to an action if he allowed the tithe to be injured on the ground, or if it was not taken within a reasonable time. The plaintiff, then, in that case, was obliged, in consequence of the obstruction, to spend extra money in the discharge of his lawful calling. That, therefore, was clearly a case where there was a peculiar pecuniary damage suffered personally by the plaintiff. With regard to the cases cited for the other side, and to the law as to the cases where an action has been held to be not maintainable, it may, perhaps, be difficult to reconcile them. But it is impossible to look at the case of Ricket v. Metropolitan Railway Company (3), and at the observations in the judgments (1) 1 Ld. Raym. 486. (2) Sir T. Jones, 156; 4 Vin. Abr. 519. (3) 5 B. & S. 156; 34 L. J. (Q.B.) 257. 1867 WINTER- V. of the learned law lords on it (1), without seeing that they thought the law had been too far extended in the direction of allowing this description of action to be brought. In this case, therefore, where LORD DERBY. there was no pecuniary damage-where the plaintiff merely, on one or more occasions, went up to the obstruction and returned, and on other occasions went and removed the obstruction-that is to say, where he suffered an inconvenience common to all who happened to pass that way-I think that to hold the action maintainable would be equivalent to saying it is impossible to imagine circumstances in which such an action could not be maintained. Then there is the particular allegation in the declaration as to expense, stating that the plaintiff "was obliged to incur, and did incur on divers days, great expense in and about removing the said obstructions." That raises the question whether this sort of damage is recoverable. I think not, for if it were, anybody who desires to raise the question of the legality of an obstruction has only to go and remove it, and then bring his action for the expense of removing it. There would then be two modes open to everybody of trying whether the obstruction was lawful, namely, by indictment or by action. But if a person chose the latter way, and removes the obstruction, he only incurs an expense such as any one who might go to remove the obstruction would incur. The damage is in one sense special, but it is, in fact, common to all who might wish, by removing the obstruction, to raise the question of the right of the public to use the way. Upon the authorities, then, and especially relying on Iveson v. Moore (2) and Ricket v. Metropolitan Railway Company (3), I am of opinion that the true principle is, that he and he only can maintain an action for an obstruction who has sustained some damage peculiar to himself, his trade, or calling. A mere passer-by cannot do so, nor can a person who thinks fit to go and remove the obstruction. To say that they could, would really in effect be to say that any of the Queen's subjects could. We must therefore make the rule (1) The judgment of the Court of Exchequer Chamber was affirmed in the House of Lords on the 16th of May last (see Weekly Notes, vol. ii. p. 157); and the judgments of the learned law lords had been handed to the Lord (3) 5 B. & S. 186; 34 L. J. (Q.B.) 257. |