Hargro v. Hodgdon

Public Nuisance—Obstruction of Alley—Special Injury to Plaintiff — Pleading — Special Demurrer — Motion for Judgment. — In an action to abate a nuisance caused by the obstruction of a public alley, although the complaint does not by explicit, positive averment state a special damage or injury to the plaintiff different in kind from that sustained by the general public, yet if that essential fact appears by plain and necessary implication, and no objection to the pleading is taken by special demurrer, the pleading will be upheld, upon a motion for judgment on the pleadings made at the commencement of the trial.

Id. — Obstructing Access to Private Premises — Private Nuisance. — A private individual may maintain an action to abate an obstruction which, while obstructing the public highway, also cuts off access from his premises to the public highway, and thus becomes as to him a private nuisance.

Id. — Damage to Plaintiff—Equitable Relief. — The plaintiff need not show, nor need the court find, any actual pecuniary damage to the plaintiff, to justify the abatement of the nuisance. The fact that the threatened injury to the plaintiff, by reason of the obstruction, is of such a nature that it is incapable of pecuniary estimation is ground for equitable relief.

Id.—Invasion of Substantial Right — Continuing Trespass—Nominal Damage—Abatement of Nuisance.—If a substantial right has been invaded by a nuisance, especially if the wrong be in the nature of a continuing trespass of such a character that its continuance will create a right against the estate of another, or operate to deprive such person of a substantial right incident to his property, the nuisance will be abated, although the damage suffered is merely nominal.

Public Alley — Dedication. — Where the owners of land agreed to give a certain portion thereof for the purpose of opening an alley, and the alley was thereupon opened, and deeds and mortgages were made recognizing its existence, and it was kept open and accessible to the public and used by the public as a public alley for over thirty years thereafter, a dedication of the alley to the public is sufficiently shown.

Id.—Evidence—-Map — Street Assessment—General Knowledge op Public. — A map showing the existence of the public alley, and a street '* assessment for its improvement, are admissible in evidence on the question of dedication, as tending to show general knowledge of the existence, of the alley.

Id. — Prescriptive Bight. —Bo right can be acquired in a public alley as against the public by an adverse holding.

Id.—Adverse Possession—Gate Erected by Consent of Abutting Owners — Free Access.—The fact that a defendant, who claimed title to an alley by adverse possession, erected a gate across its entrance, with the consent of the abutting owners, to prevent the depo.-it of rubbish in the alley, does not make his possession of the alley adverse, it appearing that the gate was opened and the alley at all times freely used by all who had occasion to use it.