Commonwealth v. Webb

delivered the opinion of the Courts

*726The Defendant was presented by the Grand Jury'for the Superior Court ,of Nottoway County, for a public nuisance, in erecting á mill-dám across Little Creek, in the said County, without lawful" authority.

On thisPresentment,an Information was filed containing tvyo county, charging in both, that by means of the said dam, the waters of tj;e said creek had been rendered stagnant, and the air impure; concluí” ing the first, tó the common nuisance of all the citizens of the Com,monwealth, residing in the neighborhood; and concluding tjae ser cond, to the common nuisance of the inhabitants árpun.d the. po,njL naming them particularly, and all other citizens, of the neighborhood,. To this Information, the Defendant pleaded not guilty, op whiph.i^sue was taken, and two trials were had before the Jury, who, ip. both instances, disagreed.

At a subsequent Term, the Attorney for the Commonwealth, by leave of the Court, amended bis Information, charging ip, substance the same fact, and concluding the first count, ‘ ‘ tot lie great.: damage, and common nuisance of .alt the good, citizens of th\s Commonwealth, not only there residing and. inhabiting, but also, going, returning, passing and repassing by the neighborhood, the said pond;” the. other count concludes, “ to the common nui-, sanee of all the citizens of the Commonwealth.”

To this Information, the Defendant demurred generally, and the Attorney for the Commonwealth joined in the Demurrer. The said Superior Court adjourned the case to this Court for novelty and difficulty, on the question, “ What. Judgment ought to.be given upon the said Demurrer?”

The decision of ..this question calls for a more precise discrimina-, tion between public and private nuisances,'than was necessary, for the decision of the case of the Commonwealth against Faris, 5 Rand. p. 691.

In making this discrimination,' the Court has been ably assisted by the dtttorney General, and the Counsel for the Defendant, and the conclusion to which the Coürt has árrived, is this: That jtp.constitute a public nuisance, the act doné, or duty omitted, must afiect injuriously, some thing, or right, in which the community as a body politic, have a common interest, and the facts producing this injury, arid connecting it with such special public right, or iriterrist, must be both alleged, and proved. To carry this matter further, would obliterate every line'that ñów máriks thé difference between public and private wrongs. The community have an interest in the preservation of the health and lives of .its members; they have a right to see and provide that each shall breathe the air as nature *727it. . But this interest, arid this right, in no manner differs from the ihiérést in, and right to secure, the welfare of all its members, in every relation. Both are provided for or prosecutions, according to the nature of the case. As it regards thé cáse before us, we find it every where laid down, that things doné,' or duties omitted, which affect the public interest, are public nüisánces; those, on the contrary, which affect particular individuals, are private nuisances, and redressed by private actions. We cannot-find in any decided case, the precise question before us considered, but this results from the fact, that no attempt has been made to maintain a public prosecution for a nuisance, arising from a local fixture, the effects of which are not alleged, and proved, to be injurious to some distinct public right or interest, as contra-distinguished from that interest which the public have in each of its members enjoying his own right. No precedent can be found of a prosecution of this . character, which is not distinctly based on this idea. No adjudicated case condemns the allegations which thus connect the fact with the public interest, as a surplusage or unnecessary.

But, it has been strongly argued, that notwithstanding these averments are constantly found in the Indictments, in the reasoning of the Judges upon the actual wrong committed, the principal stress seems to be laid on the injury done to the neighbouring inhabitants, and the inconvenience to the public by the effect produced on highways, &c., is lightly regarded; fróm hence this public injury is called the shadow, while the injury to the neighbours is the real substance whereon the public prosecution is founded. It is readily conceded, that on the question of the quantum of punishment, this argument is generally substantially correct, but we should find no difficulty in ..•■eoiffining this punishment to the public grievance only, in every case where the parties more immediately concerned, are prosecuting ...their private remedies, or will not forego them. The practice of "the Courts, on Indictments for breaches of the peace, furnishes the rule which should govern in such cases. The fact, that the injury to surrounding individuals is principally regarded in estimating the ■'grade of the Defendant’s delinquency, may be well likened to the action of a father for debauching his daughter and servant, whereby he lost her service, the latter is the gist of the action, without which it cannot be maintained; but, iri estimating the damages, the injury to the feelings and character of the father and his family, together with the decree of impropriety of the Defendant’s eonduct, are almost exclusively regarded. The necessity of thus restricting public prosecutions for nuisances, is strongly enforced by a rule of Law, which we find no where contradicted, that no private *729action can be maintained for a public nuisance, without special damage done to the party complaining. By special damage, we understand, an injury different in kind from that of which the public complains. If a local fixture, which renders the air impure, or uncomfortable to a neighbourhood, without affecting any public right, as before described, could be made the subject of a public prosecution, it must be because all the citizens of the Commonwealth are liable to be so affected. The injury thus sustained by any particular individual, is of the same kind with that to which the public are thus liable, arising from the same cause, and affecting the same local situation. From the above rule it follows, that if this be a public offence, no private action in such case could be maintained} but, if we suppose that the public prosecution is founded on the injurious effects of such fixture on the highway, or other public right, then the private individual, who, on his own land, off the said highway, sustains an injury from the same fixture, on account of its injurious effects on his habitation, complains not at all of an injury common to himself and the rest of the community, but of one to himself alone, and for which he of course may have his private remedy. For these reasons, we conclude, in the language of some of the Judges who decided the aforesaid case of the Commonwealth against Paris, that to support the prosecution, on the Information before us, it ought to be alleged and proved, that the obstructions placed in Little Creek, in the County of Nottoway, produced a stagnation of the waters thereof, in or near & public highway, or some other place, in which the public have such special interest. The general conclusion, that the stagnation of the said waters does injure all the citizens of the Commonwealth, will not cure the want of such special averment, because the facts stated do not warrant that conclusion. The attempt made, in some of the Books referred to, to reconcile the cases, which require this precise conclusion, with those which regard the Indictment as good without, is unsatisfactory. It supposes, that the general conclusion is called for only in cases where the public nature of the offence is not alleged in the special averments with sufficient certainty, but no where supposes that the absence of sucli averments may be so supplied.

The consequence is, that the amended information filed in this case is not sufficient, and-that the Defendant’s Demurrer to it should bo sustained, and Judgment rendered for him,