Van Brunt v. Ahearn

Headnote

Complaint— alleging obstruction of highway — Public nuisance — when an action to abate, is maintainable.

Appeal from an order overruling a demurrer to the complaint.

The complaint in this action alleges that the plaintiff is the owner of certain land fronting on a certain way, road or street, known as Catharine street. In one portion of the complaint the plaintiff states that he is entitled to a right of way through Catharine street, as an easement, and in another part he states substantially that Catharine street is a public highway., The plaintiff further states that his only means of access to his land is through Catharine street. It is then charged that the defendant, with another person, have wrongfully dug up this street and erected upon it a building, and placed across it a

fence, so as to prevent all passing over it by tbe plaintiff, and tbat damage has resulted to the plaintiff by these wrongful acts; that the defendants continue the obstruction and refuse to remove them, and that since the erection of these structures he has been deprived of the use of this street. The relief demanded is that Catharine street be restored to its previous condition ; that the defendant be enjoined from further interfering with the plaintiff’s rights therein, and that the plaintiff recover the damages sustained.

A demurrer to this complaint was interposed on the grounds following:

First. That there is a defect of parties defendant.

Second. That several causes of action have been improperly united.

Thwd. That the complaint does not state facts sufficient to constitute a cause of action.

After disposing of the two first grounds of the demurrer, with reference to the third cause, the court at General Term said:

“ The complaint does state facts sufficient to constitute a cause of action. It alleges that the plaintiff is the owner of land fronting on Catharine street, and that his only public entrance to the said land and his only mode of access thereto was through that street; that he has a private right of. way as an easement over the said street to his lands, and also that it is a public highway, and that the defendants have fenced up the street and continued the obstructions so that the plaintiff cannot reach his land through the same. If the plaintiff has a right of- way over the street, then, although the obstructions are not a public nuisance, yet the plaintiff has the right to have it abated and to invoke the aid of the court to cause its removal. {Drake v. Rogers, 3 Hill, 604 .)

If the street is a public highway, then the obstacles are a public nuisance, and the plaintiff may maintain this action for its abatement, having alleged special damages peculiar to himself. {Dela/ney v. BUzzcurd, 7 Hun, 7 ; Knox v. Mayor, 55 Barb., 404 .)

The defendant’s counsel seem to regard this as an action for the abatement of a nuisance similar to the common-law action for that purpose, and that it was necessary to allege that the plaintiffs were the owners of the freehold affected by the nuisance at the time the acts complained of were committed, and that the defendants were

tbe owners of tbe land wbereon tbe nuisance was erected. In tbis tbe counsel is in error. As bas been already stated, it is an action in equity, and tbe court can administer relief in tbis class of cases on broad principles of justice, without reference to technicalities wbicb prevailed formerly on this subject in courts of law. (Knox v. Mayor, supra.) ”