5 Co: 73a. Co: Lit: 56a. The question was much debated in Ashby v. White, and 1 Sm: L. C. Holt, C.J., laid down the law as follows:-"So here in the 264 [8th ed:] principal case, the plaintiff is obstructed of his right, and shall therefore have his action. And it is no objection to say, that it will occasion multiplicity of actions; for if men will multiply injuries, actions must be multiplied too, for every man that is injured ought to have his recompense. Suppose the defendant had beat forty or fifty men, the damage done to each one is peculiar to himself, and he shall have his action. So if many persons receive a private injury by a public nuisance, every man shall have his action, as is agreed in Williams' Case, and Westbury and Powell. Indeed, where many men are offended by one particular act, there they must proceed by way of indictment, and not of action; for in that case the law will not multiply actions. But it is otherwise when one man only is offended by that act. He shall have his action; as if a man dig a pit in a common, every commoner shall have his action on the case per quod communiam suam in tam amplo modo habere non potuit; for every commoner has a several right. But it would be otherwise if a man dig a pit in a highway; every passenger shall not bring his action, but the party shall be punished by indictment, because the injury is general and common to all that pass. But when the injury is particular and peculiar to every man, each man shall have his action" (1). considered. The case itself may be explained on many grounds. Assum- Ashby v. White ing the right to vote to be vested in all the community, there was correlative to it a duty on all to abstain from interfering with it. There was in addition a positive duty cast on the receiving officer to accept the votes, and this might possibly be construed into a public duty. But even if this were so the offence was not to the public, but to the individual, and consequently the plaintiff was a party specially injured. But if the right to vote be considered as a right given only to a class (1) It is important to notice the distinction of language used: in one case "receive an injury," in the other "are offended.” of the community, as in fact it was, then the case seems to fall within the principle which we must next consider. The cases in which the right of action for small damages is taken away are those only where the rights are vested in, or the duties relate to, the entire community. If they are only vested in, or relate to, a class, the action for nominal damages remains, because there is no remedy by indictment, and this whether the class be great or small. Thus where the inhabitants of a district had a customary right to water from a spout, and a riparian owner on the supplying stream prevented the water reaching the spout, so that what remained was insufficient for the needs of the inhabitants; some of the inhabitants sued, and although they had never suffered any actual personal inconvenience they were held entitled to recover nominal damages. Baron Channell laid down the true principle to be that "where an indictment may be maintained there is no remedy by action without proof of individual damage. But this does not apply where the injury complained of is not one affecting the public generally, but only a particular class or section of persons: " Harrop v. Hirst (1). And it was thus laid down in Marys's case: "Privatum damnum sive nocumentum shall be reformed by the action of the private party grieved, and commune nocumentum at the suit of the King, who is the head of the whole commonwealth; but a trespass done to many commoners is privatum and not commune nocumentum." But when there is a commune nocumentum then the main principle applies: no action can be brought except by an individual who can "shew a particular damage suffered by himself over and above that suffered by all the Queen's sub (1) The judgments proceed evidently on the principle to which we have so frequently adverted, namely, that nominal damages may be recovered for the mere violation of a right, although the plaintiff has suffered no actual damage. But it is clear that the case falls within the abstraction of water cases already considered under the head of nominal damages; and also resembles the commoner cases. It was admitted that the abstraction of the water was in appreciable quantities. obstruction, see if there jects." (See, among many other old cases, Fineux v. Hovenden, Cro: Eliz: 664and Paine v. Partrich.) Carthew, 191. In cases of obstructions to highways, it frequently therefore In cases of becomes a question whether the way is really a highway or examination one only for the convenience of a class; for example, the in- necessary to habitants of a certain parish. As in Thrower's case, where is really a the distinction was taken by Hale, J., between the obstruction of "communis via pedestris ad ecclesiam pro parochianis, in which case an indictment would not be good, for there the nuisance would extend no further than the parishioners for which they have their particular suits," and a common footway to church which might lead further. (See also Austin's case.) I Ventr: 189. The class of cases including actions by commoners for surcharge of common fall within this principle. It is very important to see how this rule we have been discussing has been applied. It will be convenient to consider a few of the cases in groups, according to the nature of the public duty violated. In many cases it will be noticed that the question of remoteness of damage is involved. highway. 1 Ventr: 208. Peculiar injuries resulting from obstructions to, or A person who could only prove that he had been delayed on Examples of peculiar inseveral occasions in passing along the road, and that he was juries. obliged, in common with every one else who attempted to use it, either to pursue his journey by a less direct road, or else to remove the obstruction, was held not entitled to bring an action: Winterbottom v. Lord Derby. But in Chichester v. Lethbridge the plaintiff recovered on account of having to travel a longer and more difficult road; and also in Hart v. Bassett on the same ground, £5 damages being awarded "for the labour and pains he was forced to take with his cattle and L. R. 2 Ex: 316. Willes, 71. T. Jones, 156. 2 Bing: 263. So where a man servants by reason of this obstruction (1). was delayed four hours by the obstruction, and was prevented from doing the journey as he was used to, so many times in the day, he was held entitled to succeed: Greasly v. Codling. So where, owing to waggons standing too long in the street, the free passage of light and air was impeded, and the plaintiff L. R. 9 C. P. had to burn gas all day, he recovered his loss: Benjamin v. Storr. Brett, J., suggested that where a highway was obstructed and another, though less convenient, way was provided, the plaintiff would fail to establish a case of peculiar injury. 40. 9 Q. B. 991. A very extreme case was put by Lord Denman, C.J., in Dobson v. Blackmore: "If an obstruction of a public road appeared to be of a permanent nature in its construction, or professed, either by notice affixed or in any other way, to deny the public right, and so led to an opinion that no road was there, the value of a house might be lowered in public esteem, and pecuniary loss might follow, for which we will not say that an action would not lie." Obstructions to navigable rivers. The owner of barges was compelled to unload and carry his cargo round by a longer way: he recovered in respect of his 4 M. & S. 101. pecuniary loss: Rose v. Miles. 9 Q. B. 991. Nuisances generally so called. 11 H. L. ca: 642. [ante, p. 159.] So the verdict was for the plaintiff, who, being the owner of houses abutting on a river, was hindered by barges of his convenient access, and was obliged to have his goods conveyed to his house by a more circuitous route: Dobson v. Blackmore. Nuisances from noxious vapours or smells. This question was much discussed in the important case of St. Helen's Smelting Co. v. Tipping, in which the plaintiff (1) The distinction taken by the Court of Exchequer between this case and Winterbottom v. Lord Derby was that in the former there was pecuniary loss, but in the latter there was none. recovered substantial damages for injuries to his trees resulting from the adjacent smelting works: the question of personal discomfort from smells was also considered. The principle laid down was that an inhabitant of a district must submit to a certain amount of personal discomfort, according to the circumstances of every district: that is to say, what might be held to be a nuisance to an inhabitant of Sussex, might not be held to be a nuisance to an inhabitant of the Black Country; therefore, although the smell or vapour complained of were productive even of sensible personal discomfort, yet it would not be actionable unless it were very aggravated. But where the damage results to property the same rule does not apply, and therefore actual material injury to property will entitle the plaintiff to damages in respect of it. A similar question arose in Salvin v. North Brancepeth Co. 22 W. R. 904. The plaintiff's scientific evidence seemed almost irresistible that damage to property would gradually ensue from vapours, and had in fact begun. But the defendant's evidence rebutted the present damage. The injunction which the plaintiff asked for was refused on the authority of the previous case: but it was pointed out that if any substantial damage could be shewn at any future time, the plaintiff would not be estopped from suing in respect of it. These cases establish the following propositions :(1) The injury must be peculiar to the plaintiff. General principles. [Brett, J., in (2) The injury must be the direct result of the act; the Benjamin v rules as to remoteness of damage applying. (3) The injury must be substantial, not fleeting nor eva nescent. Storr. L. R. 9. special recovered. In accordance with what we have already said in section 4 Technical of this chapter, the plaintiff may claim technical special damages may damages in respect of his special injury. As, for example, be laid and for obstructing the navigation of a river, the plaintiff's access to his house being taken away, he can recover general substantial damages for loss of custom, or technical special M |
