Helm v. McClure

Britt, C. — Action begun May 13, 1893, to abate an alleged public nuisance, plaintiff claiming to have sustained special damage. After trial the court found that [201]for fifteen years last past there has been a public road in the county of Lake, about forty-three rods in length, which is an extension northeasterly of Main street in the town of Upper Lake; that for upwards of three years last past plaintiff has been the owner and in possession of a lot of land on the west side of, and adjacent to, said public road; that the only means of entrance and exit to and from plaintiff's lot is over such highway, and she had been accustomed to travel with vehicles and on foot over the same to her lot until about December 1, 1891, when defendants erected a dwelling-house and fence in said road, whereby access to and egress from her lot is wholly prevented; that plaintiff has suffered no pecuniary damage by reason of such obstructions, but has been injured in a “ manner different in degree and in kind from what the public in general have suffered ”; that the defendants—who are husband and wife—are the owners of the land on which the obstructions rest subject to the right of the public to use the same as a highway. The findings were filed October 14, 1893. The judgment directed the removal of the house and fence. Defendants moved for a new trial, which was denied, and have appealed from the judgment and the order denying such motion.

The principal matters agitated here are whether the evidence supports the conclusions of the court that the place where defendants erected their structures is a highway, and that plaintiff has sustained detriment different in kind from that suffered by the public at large. The evidence shows that the alleged highway has for many years been known locally as ‘Dewell avenue’; and for brevity we may refer to it here as the ‘avenue.’ From the record, including a map of the way and premises involved, it appears that about the year 1870 one Benjamin Dewell was the owner of the land “all around the premises claimed to be a road,” as well as that included in the avenue itself. From time to time he sold the land abutting on both the east and west sides of the avenue in parcels of varying dimen[202]sions, probably five in all. The parcel including plaintiff’s lot was conveyed by Dewell to one Waller as early as 1874; it had a frontage on the west side of the avenue of a little more than twenty rods, and has been subdivided into four lots owned by as many different persons, but all fronting on such avenue. Dewell yet owns, and, it seems, resides on the land to the northward of the avenue, into which at its northern extremity he has a gateway. For more than fifteen years such avenue has been marked and inclosed at its northern end by Dewell's fence and gate, and on its east and west sides by the fences of the persons to whom Dewell sold the abutting parcels of land or their successors in interest; and open at its southern extremity into the northern end of Main street in the town of Upper Lake. The avenue is thus a cul de sac. It is about six feet wider than said street, which latter is seventy feet in width; the east line of the avenue being continuous with the east line of the street, but the west line of the street at the point of junction is about six feet further east than the west line of the avenue. A creek (or slough, as it is commonly called in the evidence), fifteen or twenty feet wide, courses along the westerly side of the avenue the greater part of its length. During the winter season water runs in this slough to the depth of several feet. The plaintiff’s lot is about eighteen rods in length —east and west—and about four rods in width; it includes at its eastern end the greater part of the width of said slough, but appellants deny that it extends to the line of the alleged highway—a matter to be noticed further on. The south line of plaintiff’s lot—assuming that it extends to said avenue—intersects the same at a point about seven rods north of the junction of the latter with said Main street. Plaintiff constructed an embankment or breakwater four and one-half feet high on her lot along the west side of said slough to prevent the overflow of water therefrom. This embankment prevented communication between her lot and the avenue, unless by means of a bridge across the slough,