Shaubut v. St. Paul & Sioux City Railroad

The premises to which the present controversy relates, are part of the city of Mankato, and are represented on the diagram on the opposite page.

So far as this appeal is concerned, the plaintiff may be regarded as bringing this action as owner and occupant of the land designated as his upon the diagram, (and in no other right,) to recover damages for, and to remove and to enjoin the continuance of obstructions placed by defendant in that part of Washington street lying between the southerly halves of blocks 45 and 46.

From the facts shown by the diagram, we may draw two inferences, which are not disturbed by any other facts disclosed in the case. The first inference is that plaintiff, simply as owner and occupant of the land designated as his upon the diagram, is not owner of any estate or interest in the part of Washington street lying between the southerly halves of blocks 45 and 46, for his land does not abut upon it. He cannot, therefore, complain of -the obstruction in question upon the ground that defendant has appropriated that part of Washington street, without making or securing compensation to him for the same.

The second inference is that the injury which plaintiff suffers, in consequence of the obstructions, is an injury in common with the public at large, the only difference between the injury suffered bjr him and that suffered by the public being a difference in degree, not in kind. What might be *505the plaintiff’s rights, if the obstructions had the effect to cut off access to his land, we need not enquire, since both the diagram and the testimony in the case show that he has that access, through other streets, without the necessity of passing over the obstructed portion of Washington street.

So far, then, as plaintiff’s rights in this action are concerned, the obstructions, (if a nuisance at all,) are a public *506nuisance only, and therefore to be removed and enjoined through a proceeding by the public, or its proper representative ; and as the obstructions have occasioned him no injury which the law regards as peculiar or special, the plaintiff has no action for private damages on their account. Dawson v. St. Paul F. & M. Ins. Co., 15 Minn. 136 ; Blood v. Nashua & Lowell R. Co., 2 Gray, 137 ; Harvard College v. Stearns, 15 Gray, 1. Judgment reversed.