When plaintiffs rested their case upon the trial the court dismissed the same on the ground that the testimony introduced was insufficient to sustain the action. A motion for a new trial was afterwards denied, and the questions involved are before us on a bill of exceptions. From this bill it appears that both parties have been engaged in lumbering for several years upon Eum river, a stream navigable for logs and timber. Both parties cut their logs on the upper waters, and drive them to their respective mills, there to be manufactured into lumber. The. plaintiff s’ mill is at Anoka, the defendant’s about 75 miles above it, at Milaca; and it follows that plaintiffs’ logs must be driven past the point at which defendant’s are taken from the stream and manufactured. The only practicable way in which either of these mills can be supplied with logs is by driving them down the said river. Just above its mill the defendant company constructed two dams across the river, about a half mile apart, the natural result being to create a pond and slack water above each, the slack water in the upper pond extending about 3,000 feet above the upper dam. In this pond the defendant placed piers, piling, and boom sticks, so that a path or way was made from 4Ó to 70 feet wide, leading from about where the slack water began directly to the dam, and crossing the original channel of the stream twice. Side booms were *498put in by defendant on either side of the way, and at a convenient place a sorting gap, and all logs coming down the river had to pass men in defendant’s employ, stationed at the gap, whose business it was to guide logs bearing defendant’s marks into these side booms for storage, and to allow all other logs to pass on. Between the dams there was piling and booms. The inevitable result was to delay and detain plaintiffs’ and all other logs destined for points below defendant’s mill. In the years 1890 and 1891 these plaintiffs were engaged for themselves, and, under contract, for other persons, in making what is called a “clean drive” of the river. It is unnecessary to go into the details as to the exact manner in which it was done, but the testimony produced by plaintiffs on the trial tended to show that by reason of the piers, piling, booms, boom sticks, and dams before mentioned, and the way in which defendant’s employes performed their work above and at the sorting gap, and appropriated the river for the storage of defendant’s logs, the passage of the logs which plaintiffs were driving was unnecessarily impeded and obstructed, and that plaintiffs were unreasonably and oppressively hindered and delayed in their driving operations, to their great damage; the object of this action being to recover the amount of such damages.

It is apparent that the learned trial judge, allhough convinced that by reason of the maintenance of a public nuisance in the river a wrong had been committed for which plaintiffs should have redress, felt constrained to dismiss the action on the authority of two recent cases,—Swanson v. Mississippi & R. R. Boom Co., 42 Minn. 532, (44 N. W. Rep. 986,) and Lammers v. Brennan, 46 Minn. 209, (48 N. W. Rep. 766),—and we are obliged to admit that, if reliance could be placed on our views as to the proper application of a well-settled rule of law to a given state of facts as expressed in Swanson v. Mississippi & R. R. Boom Co., he was fully justified in his ruling. While differing somewhat on the facts, the present case cannot be distinguished from that, and the rule there announced as applicable and controlling, preventing a recovery by the plaintiff, if rightly applied on that occasion, would be equally as pertinent and equally as determinative on this. But we are now convinced that an error was committed in the application to the facts in the Swanson Case of the salutary and well-established rule that an in*499dividual cannot maintain a private action for a public nuisance by reason of any injury which he suffers in common with the public, and that it is only when he sustains special injury differing in kind, not merely in, degree or extent, from that sustained by the general public, that he may recover damages in a private action; and an examination of the opinion recently filed in Aldrich v. Wetmore, 52 Minn. 164, (53 N. W. Rep. 1072,) will indicate that we then had doubts of the correctness of the decision in Swanson v. Mississippi & R. R. Boom Co.

In the opinion in Aldrich v. Wetmore, supra, most of the cases in this court bearing on the subject, and many others, were referred to and discussed, and we are not inclined to again go over the ground.

It is obvious that there has been a very marked conflict of opinion in the application of the rules pertaining to the rights of private parties to have redress in private actions when injuries have grown out of public nuisances, and as to where, on the facts, the line should be drawn. This conflict, and that the adjudicated cases are irreconcilable, is well shown in Stetson v. Faxon, 19 Pick. 147; Farrelly v. City of Cincinnati, 2 Disney, 516; and in Wood, Nuis. ch. 19.

That a nuisance, such as an unreasonable or wanton obstruction of a navigable stream, a public highway, may be public in its general effect upon the public, and at the same time private as to those individuals who suffer a special and particular damage therefrom, distinct and apart from the common injury, need not be demonstrated by illustration. The public wrong inflicted upon all persons must be redressed by a public prosecution, and the private injury by an appropriate private action. An obstruction to a highway, although it be an infringement upon the rights of the general public, in the nature of a public nuisance, may be, and frequently is, productive of special and particular damage to a private individual; and it would be highly unjust and inequitable to say that he has no right of redress in a private action, on the ground, merely, that the injury had resulted from an act which is a public offense in itself, and because other persons might have been injured and damaged in the same manner and to the same extent, had they met the *500obstruction under like circumstances. Such is not the law. The general doctrine in reference to the use of navigable streams as public highways is that each person has an equal right to their reasonable use. What constitutes a reasonable use depends upon the circumstances of each particular case, and no positive rule can be laid down to define and regulate such use with precision, so various are the subjects and occasions for it, and. so diversified the relations of the parties therein interested. The defendant had the right, as had the plaintiffs, to use the river as a highway for the purposes of navigation, and, as an incident to this, the right to secure its logs in side booms, although the inevitable result would be to temporarily obstruct the logs of other persons destined for a mill or market further down the stream. And we have no doubt of its right, in a reasonable manner, to erect piers and dams, and to put in piling, and attach boom sticks, and also to maintain side booms for the storage of logs; but it was not authorized by the construction of piers, dams, booms, or boom sticks, or by the management of either, or of a sorting gap, to unreasonably or oppressively obstruct or blockade the way. It must use the stream with due deference to the rights of others, and in most respects streams used for highway purposes are governed by the same general rules of law as are highways upon land. No general rule can be laid down for determining whether a pleading shows, or whether the evidence produced upon a trial tends to establish, a case under the principle or rule that, to maintain an action for a wrong or injury arising out of the maintenance of a public nuisance, an individual must have sustained special injury differing in kind, not merely in degree or extent, from that sustained by the general public; and we shall not attempt it. It is well discussed in Aldrich v. Wetmore, supra. We are of the opinion that the case now under consideration was brought within the rule, and that the evidence tended to show that plaintiffs had suffered a special and particular injury. • This injury, the direct result of an unreasonable detention of their logs by means and methods for which defendant company is responsible, was wholly distinct and different in kind, not merely in degree and extent, from that sustained by the general public.

A private action can be maintained to redress this injury, not*501withstanding there is also a remedy afforded the public. In principle the plaintiffs’ rights cannot be distinguished from the individual rights considered in Brakken v. Minneapolis & St. L. Ry. Co., 29 Minn. 41, (11 N. W. Rep. 124,) and in numerous other cases in this court, where an action to redress a private wrong, growing out of a public nuisance, has been declared the proper remedy. Attention is called to Brown v. Watson, 47 Me. 161, and Enos v. Hamilton, 27 Wis. 256, in which the exact question now before us has been discussed briefly, and passed upon. Both cases support the conclusion herein reached, and the one last cited has been approved in at least three later cases in the same court. That it has been the common practice to bring actions at law not distinguishable from that at bar, and also in equity, and to prosecute them to a successful termination, will be seen from an examination of the following: Powers v. Irish, 23 Mich. 429; Watts v. Tittabawassee Boom Co., 52 Mich. 203, (17 N. W. Rep. 809;) Gifford v. McArthur, 55 Mich. 535, (22 N. W. Rep. 28;) Enos v. Hamilton, 24 Wis. 658; Clark v. Peckham, 10 R. I. 36; Blanchard v. Western Union Tel. Co., 60 N. Y. 510; Hughes v. Heiser, 1 Binn. 463; Weise v. Smith, 3 Or. 445; Lancey v. Clifford, 54 Me. 487; Dudley v. Kennedy, 63 Me. 465; McPheters v. Moose River Log-Driving Co., 78 Me. 329, (5 Atl. Rep. 270;) Frink v. Lawrence, 20 Conn. 117.

Order reversed.

I concur in the result, and do so more especially on the ground that, for the purposes for which plaintiffs were using the river, (driving logs,) it was their only highway for getting their timber to their mill.

(Opinions published 55 N. W. Rep. 608.)

On Rehearing. July 19, 1893.

On the hearing of an order to show cause it has been conclusively established that the appeal considered and disposed of in the opinion in the above-entitled action was so con*502sidered and disposed of on a pretended return; no return, in fact, having been made by the clerk of the district court. This was not known to this court, of course, until after the opinion had been filed, nor was it within the knowledge of respondent’s counsel. As the court had no jurisdiction of the cause, it is now ordered that the pretended return be stricken from the files, and that the order heretofore made, whereby the order of the court below denying plaintiffs’ motion for a new trial was reversed, be set aside and vacated.

(Opinion published 55 N. W. Hep. 1119.)