Lewiston Turnpike Co. v. Shasta & Weaverville Wagon Road Co.

By the Court, Rhodes, C. J.: The only questions in the case arise upon the demurrer to the complaint. The plaintiff is the owner of a turnpike road leading from Lewiston, in Trinity County, to a certain point where it intersects a public highway in Shasta County, and possesses the right to collect tolls on that turnpike. The defendants have wrongfully placed a toll gate on the public highway, about a half mile from the point of intersection of the public highway with the plaintiff’s turnpike, and have demanded and collected tolls of persons who pass along the highway with their teams, vehicles, etc., and threaten to maintain the gate and collect tolls, etc. The plaintiff alleges that by means of the gate the highway is greatly obstructed, and that by reason thereof, the plaintiff cannot “ have or enjoy its said toll road or turnpike as it ought to be [have] done, and otherwise might and would have done; and has been and is by means of the premises deprived of the use, benefit, and advantage thereof,” and that the maintenance of the toll gate by the defendant will cause great and irreparable damage to the plaintiff. It is also alleged in the complaint “ that under and by virtue of said incorporation (the incorporation of the plaintiff) the plaintiff obtained the franchise or right to collect tolls on said road or turnpike, and has, since its completion, enjoyed said right, privilege, and franchise without any interruption, disturbance, or interference whatever.”

The complaint, tested by the familiar rule that a pleading is to be construed most strongly against the pleader, shows no cause of action; for if the plaintiff’s franchise—its right to collect tolls—has not been interrupted or disturbed, no injury has been occasioned by reason of the acts complained of.

The obstruction of a public highway is a common nuisance. A private person has no cause of action by reason of such [565]obstruction, unless he has suffered some special damage. The special damage must be such as might legitimately flow from the nuisance. It is a further rule of pleading, that such special damages must be particularly stated. (1 Chit. Plead. 347; Butler v. Kent, 19 Johns. 228; Squier v. Gould, 14 Wend. 159; Bogart v. Burkhalter, 2 Barb. 525; Cole v. Swanston, 1 Cal. 51; Gay v. Winter, 34 Cal. 153.) It was held in Stevenson v. Smith, 28 Cal. 102, that when the damages are special—that is, such as do not necessarily arise, or are not implied by law, from the act complained of—the facts out of which the damages arise must be averred in the complaint. The- maintenance of a toll gate upon the public highway, mentioned in the complaint, did not necessarily lessen its use as a highway; and if such were the case, it does not necessarily follow that thereby the travel on the plaintiff’s road was diminished and the tolls lessened. The plaintiff should have stated the facts out of which the damages arose—the means by which the damages were caused. The plaintiff has not alleged that any one was prevented, by means of the defendants’ toll gate, or in consequence of their having demanded or collected tolls, from traveling upon the plaintiff’s turnpike, on paying the proper tolls therefor. The complaint, in that respect, is defective. (Lansing v. Smith, 8 Cow. 146.)