charged with contributory negligence because of the failure of the trustee to exercise reasonable care to prevent such injury.50 Such action, as in the case of suits for injunction,51 may be brought by a private person, if he has sustained special damage differing not merely in degree, but in kind, from that suffered by the community at large,52 as where access to plaintiff's property is cut off.53 As a general rule there is no right of recovery by one who 50. Pittsburgh, etc., R. Co. v. Iddings, 28 Ind. A. 504, 62 NE 112. See generally Towns [38 Cyc 641]. 51. See supra § 383. 52. is deprived of the use of a highway through defects or obstructions therein,54 although a recovery may be had where the statute makes a town liable to all persons who may "in any wise" suffer injury from such defects or obstructions.55 Mere personal inconvenience to a landowner in going to and from his property is not a special injury entitling him to damages, where the obstruction does not come into physical contact with his property or is not Iowa.-Miller v. Schenck, 78 lowa 372, 43 NW 225. Tex.-Heilbron v. St. Louis Southwestern R. Co., 52 Tex. Civ. A. 575, 113 SW 610, 979; Galveston, etc., R. Co. v. Baudat, 21 Tex. Civ. A. 236, 51 Md. Ala.-Walls v. Smith, 167 Ala. SW 541; Haney v. Gulf, etc., R. Co., 138, 52 S 320, 140 AmSR 24. 3 Tex. A. Civ. Cas. § 278. Vt. Paxter V. Winooski Turnp. Co., 22 Vt. 114, 52 AmD 84. Cal. - San José Ranch Co. V. Brooks, 74 Cal. 463, 16 P 250; Lewiston Turnpike Co. v. Shasta, etc., Wagon Road Co., 41 Cal. 562; Blanc v. Klumpke, 29 Cal. 156. Conn. Clark v. Saybrook, 21 Conn. 313. Del.-Johnson 362. Wash.-Ingalls V. Eastman, 61 Me.-Cobe v. Banton, 106 Me. 418, Mo.-Piper v. Boonville, 32 Mo. A. 138. 54. Ind. -- Sohn v. Cambern, 106 Ind. 302, 6 NE 813. Iowa.-Brant v. Plumer, 64 Iowa 33, 19 NW 842. Md.-Houck v. Stayton, 5 Del. V. Wachter, 34 Md. 265, 6 AmR 332. Mass. Willard V. Cambridge, 3 Allen 574; Harvard College V. Fla.--Brown v. Florida Chautauqua 106 P 1128. Ill-Illinois Cent. R. Co. v. Griffin. 84 Ill. A. 152 [aff 184 Ill. 9, 56 NE 337]. Ind. Cleveland, etc., R. Co. v. Christie, 178 Ind. 691, 100 NE 299; Sohn v. Cambern, 106 Ind. 302, 6 NE 813; Powell v. Bunger, 91 Ind. 64. Iowa. Miller v. Schenck, 78 Iowa 372, 43 NW 225; Brant v. Plumer, 64 Iowa 33, 19 NW 842. W. Va.-Fowler v. Norfolk, etc., R. V. 11 K. B. 302 [aff 20 Que. Super. Walls ASSOC., 59 Fla. 447, 52 S 802; Jack-Que. Kan.Marts v. Freeman, 91 Kan. 106, 136 P 943. Ky.-Husband v. Cotton, 171 Ky. 177, 188 SW 380, LRA1917A 1150; Wood Mosaic Co. v. Britt, 150 Ky. 357, 150 SW 355; Hahn v. Figg, 5 Ky. Op. 547. Me.-Lunney v. Shapleigh, 112 Me. 172, 90 A 496. Md.-Schall v. Nusbaum, 56 Md. 512. Mass.-Eaton v. Locke, 202 Mass. 324, 88 NE 838. Mich. Manlius Highway Comrs. v. Chaffee, 1 Mich. N. P. 147. Minn-Painter v. Gunderson. 123 Minn. 323, 143 NW 910; Viebahn v. Crow Wing County, 96 Minn. 276. 104 NW 1089, 3 LRANS 1126; Guilford v. Minneapolis, etc., R. Co., 94 Minn. 108, 102 NW 365; Gundlach v. Hamm, 62 Minn. 42, 64 NW 50; Dawson v. St. Paul F. & M. Ins. Co., 15 Minn. 136, 2 AmR 109. Mo.-Patton v. Forgey, 171 Mo. A. 1, 153 SW 575. N. H. Lamphier v. Worcester, etc., R. Co., 33 N. H. 495. 938]: Lansing v. Wiswall, 5 Den. (N. 531; Heilbron V. St. Louis N. J.-Opdycke v. Public Serv. R. Co., 78 N. J. L. 576, 76 A 1032, 29 LRANS 71; Grey v. Greenville, etc., R. Co., 59 N. J. Eq. 372, 46 A 638 [aff 62 N. J. Eq. 768. 48 A 568]: Morris, etc.. R. Co. v. Newark Pass. R. Co., 51 N. J. Eq. 379, 29 A 184 [aff 52 N.35 NE 92; Geer v. Fleming, 110 Mass. J. Eq. 340. 31 A 383]. N. Y.-Wakeman v. Wilbur, 147 N. Y. 657. 42 NE 341 [rev 51 Hun 638, 4 NYS 938]; Lamming v. Galusha, 135 N. Y. 239. 31 NE 1024 [rev 63 Hun 32, 17 NYS 328]. Or.-Luhrs v. Sturtevant, 10 Or. 170. Pa-Hershey v. Kerbaugh, 242 Pa. 227, 88 A 1009; Fisher v. Farley, 23 Pa. 501; Pittsburgh v. Scott, 1 Pa. 309. R. I.-Hughes v. Providence, etc., R. Co., 2 R. I. 493. S. C.-Fanning v. Stroman, 113 S. C. 495, 101 SE 861; Gray v. Charleston, etc.. R. Co., 81 S. C. 370, 62 SE 442; Smith v. Gilreath, 69 S. C. 353, 48 SE 262; Carey v. Brooks, 19 S. C. L. 365. [c] Special injury held not to erist.-Atwood v. Partree, 56 Conn. 80, 14 A 85; Storm v. Barger, 43 Ill. A. 173; Dantzer v. Indianapolis Union R. Co., 141 Ind. 604, 39 NE 223, 50 AmSR 343, 34 LRA 769; Sunderland v. Martin, 113 Ind. 411, 15 NE 689 (access to public cemetery in which plaintiff's family buried); Holmes v. Corthell, 80 Me. 31, 12 A 730; Shaw v. Boston, etc., R. Co., 159 Mass. 597, 39 (tenant inconvenienced in driving cattle, unless injury to reversionary interest shown); Brailey v. Southborough, 6 Cush. (Mass.) 141; Holman v. Townsend, 13 Metc. (Mass.) 297; Griffin v. Sanbornton, 44 N. H. 246 (total obstruction by snow); McLauchlin v. Charlotte, etc., R. Co., 39 S. C. L. 583 (cutting off chance to make new entrance to lot; Meloche v. Davidson, 11 Que. K. B. 302 [aff 20 Que. Super. 26]. Action by abutting owner supra § 266. Co., 22 Vt. 114, 52 AmD 84. Brown v. [b] In Maine (1) a person deprived of the use of the highway or compelled to take a circuitous route, because of a defect therein, cannot recover against the town, under a statute authorizing recovery of damages to one's "property." Watson, 47 Me. 161, 74 AmD 482; Weeks v. Shirley, 33 Me. 271. (2) But such statute does not change the common-law rule as to nuisuch case against the individual who sances, and recovery may be had in created the nuisance. Brown v. Watson, 47 Me. 161, 74 AmD 482. 55. Williams v. Tripp. 11 R. I. 447. Union R. Co., 141 Ind. 604, 39 NE 265, 6 Mass. Willard v. Cambridge, 3 Allen 574 [dist Stetson v. Faxon, 19 Pick. 147, 31 AmD 123]; Smith v. Dedham, 8 Cush. 522. Minn.-Shero v. Carey, 35 Minn. 423. 29 NW 58. V. Wis.-Baier Schermerhorn, 96 Wis. 372, 71 NW 600; Zettel v. West Bend. 79 Wis. 316, 48 NW 379, 24 AmSR 715. See Burton v. Dougherty, 19 N. B. 51 (where plaintiff hearing of the obstruction went by another route at increased expense but did not actually attempt to go upon the road). [a] Illustration.-Mere inconvenience to a storekeeper in being compelled to travel by a different and more inconvenient route in going from his store to his home and in delivering his goods to his customers is not an injury different from that suffered by the general public and he has no right of action for damages. Walls v. Smith, 167 Ala. 138, 52 S 320, 140 AmSR 24; Willard v. Cambridge, 3 Allen (Mass.) 574 [dist Stetson v. Faxon, 19 Pick. 147. 31 AmD 123 (where the obstruction to plaintiff's premises was erected on that portion of the road abutting on such property. In other jurisdictions, however, it has been held that a person is specially injured where, because of the obstruction, he is compelled to pursue a circuitous route in reaching his property,58 or in performing a contract.59 As in other proceedings involving obstructions and encroachments,60 it must appear that the thoroughfare is an existing public highway.61 77 69 pleading govern the sufficiency of the declaration or complaint in an action for damages resulting from the wrongful obstruction of a highway.70 The pleading must show that the road obstructed is a public highway," although the manner in which it came into existence need not be alleged.72 The fact that the highway has been unlawfully obstructed 73 in violation of plaintiff's legal rights 74 must also be alleged, and the highway be described 75 sufficiently to notify defendant of the cause of action.76 The length and breadth of the obstruction need not be charged, but a complaint which fails to locate it in such a manner as to enable the court to order its abatement, in a case where such an order is sought, is defective.78 Failure to designate the points of obstruction with sufficient particularity is not ground for demurrer but must be taken advantage of by motion to make the pleading more specific.79 Where the action is brought by a private individual, the special and peculiar damages suffered by him beyond that sustained by the public being the gist of the action,s" the facts showing such damage must be alleged in the complaint.81 As in other case, the distinction between these forms of action having been abolished by statute. Holmes V. Corthell, 80 Me. 31, 12 A 730. [389] b. Proceedings 62 (1) Jurisdiction, Venue, and Parties.63 Actions for damages caused by unlawful obstructions are governed by the ordi nary rules as to jurisdiction.64 A statute giving justices of the peace jurisdiction of such actions does not necessarily deprive the circuit court of jurisdiction in like cases."5 It has been held that actions of this nature are local and should be brought in the county where the road lies.66 Under statutes authorizing an action to be brought by the trustee of an express trust,67 a township trustee may sue in his official capacity without joining the township with him.68 [§ 390] (2) Pleading. The ordinary rules of directly against, and abutting on, the the property, and diverted travel therefrom)]. [b] Route to market interfered with. -Sohn v. Cambern, 106 Ind. 302, 6 NE 813; Shero v. Carey, 35 Minn. 423, 29 NW 58. 57. Jacksonville, etc., R. Co. v. Thompson, 34 Fla. 346, 16 S 282, 26 LRA 410. 71. Hillside Cotton Mills v. Ellis, 23 Ga. A. 45, 97 SE 459. Union R. Co., 141 Ind. 604, 39 NE 223, 50 AmSR 343, 34 LRA 769; Waltman v. Rund, 94 Ind. 225. Ky.-Leslie County V. Southern Lumber Co., 89 SW 242, 28 KyL 335. Me.-Holmes v. Corthell, 80 Me. 31, 12 A 730. Md.-Houck V. Wachter, 34 Md. 265, 6 AmR 332. Mass.-Adams v. Barry, 10 Gray Mich. Powers v. Irish, 23 Mich. 429. 361. [a] Illustration.-A petition for damages for obstructing a public road forming part of the county highway which alleged that it "was accepted by the public by use by the public" failed to show acceptance as a public highway but negatived | such an acceptance. Hillside Cotton Minn. Shero v. Carey, 35 Minn. Mills v. Ellis, 23 Ga. A. 45, 97 SE 423, 29 NW 58; Barnum v. Minne459. sota Transfer R. Co., 33 Minn. 365, 23 NW 538; Rochette v. Chicago, etc., R. Co., 32 Minn. 201, 20 NW 140; Shaubut v. St. Paul, etc., R. Co., 21 Minn. 502. 58. Sheedy v. Union Press Brick Works, 25 Mo. A. 527; Ryerson v. Morris Canal, etc., Co., 69 N. J. L. 505, 55 A 98; Wakeman v. Wilbur, 147 N. Y. 657, 42 NE 341; Ingalls v. Eastman, 61 Wash. 289, 112 P 372. [a] Illustration. One who used a highway twice a day to reach a tract farmed by him from the tract on which he resided, and in consequence of an obstruction of the highway, was required to travel about twice the distance each trip on a poorer road, sustained special dam- Alma Tp. v. Kast, 37 Kan. 433, 15 516, 13 Oh. Dec. (Reprint) 316. ages. Ingalls v. Eastman, 61 Wash.585. 289, 112 P 372. 59. Knowles v. Pennsylvania R. Co., 175 Pa. 623, 34 A 974, 52 AmSR 860; Sholin v. Skamania Boom Co., 56 Wash. 302, 105 P 632, 28 LRANS 1053. [a] A contract mail carrier compelled to carry the mail by a circuitous route sustains special damages. Sholin v. Skamania Boom Co., 56 Wash. 302, 105 P 632, 28 LRANS 1053. Rights of abutting supra §§ 263, 264. owners see 60. See supra §§ 382, 383; infra § 394. 61. Dunn v. Gunn, 149 Ala. 583, 42 S 686; Cleveland, etc., R. Co. v. Christie, 178 Ind. 691, 100 NE 299. And see generally supra § 373. 62. By abutting owners see supra § 266. 63. Who may sue see supra § 388. 64. Allard v. Lobau, 2 Mart. N. S. (La.) 317 (district court). See generally Courts §§ 13-177; Trespass [38 Cyc 1073]. 65. Knorr v. Macomb Cir. Judge, 78 Mich. 168. 43 NW 1099. 66. Crook v. Pitcher, 61 Md. 510. 67. See generally Parties [30 Cyc 85]. 68. Pittsburgh, etc., R. Co. v. Iddings, 28 Ind. A. 504, 62 NE 112. 72. Leverone v. Weakley, 155 Cal. N. 74. Ross v. Thompson, 78 Ind. 90; [a] Illustration.-Allegations that defendant had deposited certain obstructions in an alley of a certain city, and that the "overseer of 10ad district No. 3 removed same at his costs" were defective for failure to show that either the city or the road district mentioned therein was within the limits of the township that brought the action. Alma Tp. v. Kast, 37 Kan. 433. 15 P 585. 75. Leverone v. Weakley, 155 Cal. 395, 101 P 304. [a] Pleading held defective for uncertainty of description. Leverone v. Weakley, 155 Cal. 395, 101 P 304. 76. Goggans v. Myrick, 131 Ala. 286, 31 S 22. 77. Snow V. Adams, 1 Cush. (Mass.) 443. 78. Sloan v. Rebman, 66 Iowa 81, 23 NW 274. 79. Leslie County V. Southern 81. Ark. Arkansas River Packet V. H.- Lamphier V. Worcester, etc., R. Co., 33 N. H. 495. Oh-Farrelly v. Cincinnati, 2 Disn. Pa. Fisher v. Farley, 23 Pa. 501. R. I. Redford v. Coggeshall, 19 R. I. 313, 36 A 89. Vt.-Buck v. Connecticut, etc., R. Co., 42 Vt. 370. Wis. Carpenter v. Mann, 17 Wis. 155. Eng. Winterbottom v. Derby, L. R. 2 Exch. 316, 12 ERC 511. [a] The character of the injury must be particularly alleged, so that the court may determine whether it is different from that sustained by the public at large. Thelan V. Farmer, 36 Minn. 225, 30 NW 670. [b] Special damage by reason of a third person passing over plaintiff's land to avoid the obstruction must be pleaded. Roberts v. Fitzgerald, 33 Mich. 4. [c] Manner of objecting to insufficient averment.-Although the complaint does not, by explicit and positive averments, state a special damage or injury to plaintiff, still, as that essential fact appeared by plain and necessary implication, and as no objection to the pleading was taken by special demurrer, it will be upheld upon a motion for judgment on the pleadings made at the commencement of the trial Hargro v. Hodgdon, 89 Cal. 623, 26 P 1106. [d] Pleadings held sufficient.-Blanc v. Klumpke, 29 Cal. 156; Jackson v. Kiel, 13 Colo. 378, 22 P 504, 18 Colo. Jackson V. Kiel, 13 Colo. 378. 22 P 504, 16 AmSR 207, 6 LRA Del.-Johnson v. Stayton, 5 Del. AmSR 207, 6 LRA 254: Barrows v. 69. See Pleading [31 Cyc 92 et 254. seq]. 70. Powell County V. Kentucky Union Lumber Co., 24 SW 114, 15 KyL 577; Smith v. Gilreath, 69 S. C. 353, 48 SE 262. And see cases infra this section. [a] In Maine it has been held that a declaration containing the essential averments is sufficient either in a plea of trespass or trespass on 362. Fla. Jacksonville, etc., R. Co. V. Il-Barrows v. Sycamore. 150 Ill. Ind. V. Indianapolis Sycamore, 150 Ill. 588, 37 NE 1096, 41 AmSR 400, 25 LRA 535; Ross v. Thompson, 78 Ind. 90: Leslie County v. Southern Lumber Co., 89 SW 242, 28 KyL 335; Redford v. Coggeshall, 19 R. I. 313. 36 A 89; Blagrave v. Bristol Waterworks Co.. 1 H. & N. 369, 156 Reprint 1245. [e] Pleadings held insufficient.— actions 82 the pleading and proof must correspond, and a material variance is fatal.83 [§ 391] (3) Evidence. The burden is on plaintiff to show the existence of a public highway,84 and that he was injured by the obstruction.85 Any evidence relevant to plaintiff's right of action,s and the damages sustained,87 or to the defense pleaded by defendant,88 is admissible if otherwise competent under the general rules of evidence in civil actions.89 The general rules governing the weight and sufficiency of evidence 90 apply to actions of this kind.91 The evidence of the highway commissioner should be considered as that of any other witness, and his opinions are not binding.": 92 for plaintiff is good, although it fails to specify whether the way is public or private.1 In addition to the recovery of damages plaintiff may, in a proper case, have judgment for the abatement of the obstruction; but such relief cannot be given where the complaint and verdict are uncertain in respect to the location of the obstruction.3 The general rules that objections not raised in the trial court cannot be availed of on appeal, and that a verdiet on conflicting evidence will not be disturbed, apply to actions for the obstruction of highways. In such actions the general rules in regard to the allowance of costs are applicable." [393] c. Damages. The damages recoverable are such as proximately result from the wrong complained of and may consist of the difference be tween the rental or fair market 10 value of plaintiff's land with and without the nuisance. The length of time the obstruction remained may be taken into account. But if the obstruction may be removed at a trifling cost or at a cost less than the value of the land,13 the measure of damages is the cost of removal. A person who unlawfully occupies a portion of a public road is not liable for rents or for the value of its use or occupation. 14 Punitive damages may be allowed for willful obstructions;15 and some statutes expressly authorize the recovery [§ 392] (4) Trial, Judgment, and Review; Costs. As in civil actions generally,93 questions of fact on conflicting evidence are for the jury;94 but issues without any evidence to support them should not be submitted to the jury.95 Whether a person is required by statute to remove an obstruction is a question for the court.96 The court should instruct upon all the issues;"7 and an instruction which excludes or ignores matters in evidence is erroneous.98 The verdict should cover all the issues presented by the pleadings.99 But it has been held that, where a paragraph for obstructing a private way is joined with one for obstructing a public highway, a verdict Arkansas River Packet Co. v. Sor- | 495; Mellick v. Pennsylvania R. Co., rels, 50 Ark. 466, 8 SW 683; Aram v. 203 Pa. 457, 53 A 340. Schallenberger, 41 Cal. 449; Jacksonville, etc., R. Co. v. Thompson, 34 Fla. 346, 16 S 282, 26 LRA 410; Holmes v. Corthell, 80 Me. 31, 12 A 730; Shero v. Carey, 35 Minn. 423, 29 NW 58; Buck v. Connecticut, etc., R. Co., 42 Vt. 370. 82. See Pleading [31 Cyc 670 et seq]. 83. Farlow v. Camp Point, 186 Ill. 256, 57 NE 781; Patterson v. Detroit, etc., R. Co., 56 Mich. 172, 22 NW 260; Benson v. St. Paul, etc., R. Co., 62 Minn. 198, 64 NW 393; Satchell v. Doram, 4 Oh. St. 542. [a] Rule applied. An averment that plaintiff was entitled to the use of "a public alley," is not supported by proof of a right to use "a private alley." Satchell v. Doram, 4 Oh. St. 542. 89. See Evidence 22 C. J. p 1. 93. See Trial [38 Cyc 1536]. Question for jury as to what con- 12 7. Knorr v. Macomb Cir. Judge, 78 Mich. 168, 43 NW 1099. [a] Thus where the only question in issue in the circuit court is whether or not the particular place where the obstruction was located was in a public highway as constituted by user, and this question is determined in plaintiff's favor, he is entitled to costs, under Howell St § 8964, although the judgment is for less than one hundred dollars. Knorr v. Macomb Cir. Judge, 78 Mich. 168. 43 NW 1099. 8. Ala.-Goggans v. Myrick, 131 Ala. 286, 31 S 22. Iowa.--Dubuque Wood, etc., Assoc. v. Dubuque, 30 Iowa 176. Md. Bembe v. Anne Arundel County, 94 Md. 321, 51 A 179, 57 LRA 96. Smith v. Gilreath, 69 S. C. 353, 279. 48 SE 262. 97. N. Y. Barnes v. Midland R. Terminal Co., 218 N. Y. 91, 112 NE 926 [mod 147 App. Div. 89, 130 NYS 750, and rev 161 App. Div. 621, 146 NYS 1033]. Pa.-Mellick V. Pennsylvania R other grounds 203 Pa. 457, 53 A 340]. Beardslee v. French, 7 Conn. [b] Mode of establishment of 125, 18 AmD 86. highway.-Proof of a common-law 98. Louisville, etc., R. Co. v. dedication is not admissible under al- Whitley County Ct., 49 SW 332, 20 legations of statutory establishment. KyL 1367. Benson v. St. Paul, etc., R. Co., 62 [a] Illustration.-It is error to Co., 17 Pa. Super. 12 [rev on Minn. 198, 64 NW 393. give an instruction upon the [c] Immaterial variance as to 10-hypothesis that the road cannot be cation.-There is no material vari-restored to its former condition, all ance between an averment of an ob- of the witnesses testifying that the struction of a highway in a specified road can be repaired, and some of township, and proof that a street in them stating that it has been fully a certain village was obstructed, repaired. Louisville, etc.. R. Co. v. where it appears that the village is Whitley County Ct., 49 SW 332, 20 in the township. Patterson v. De-KyL 1367. troit, etc., R. Co., 56 Mich. 172, 22 99. Fossion v. Landry, 123 Ind. NW 260. 136. 24 NE 96. 84. Matlock v. Hawkins, 92 Ind. 225. 85. Lewiston Turnpike Co. V. Shasta, etc., Wagon Road Co., 41 Cal. 562. 86. Seidschlag v. Antioch. 109 Ill. A. 291 [aff 207 111. 280, 69 NE 949]; Hershey v. Kerbaugh, 242 Pa. 227, 88 A 1009. 87. Louisville, etc.. R. Co. V. Whitley County Ct., 49 SW 332. 20 KyL 1367; Wicks v. Ross. 37 Mich. 464; Bisher v. Richards, 9 Oh. St. 495. [a] Rule applied.-Evidence as to the quantity of wood plaintiff might have taken to market had the road been unobstructed is not admissible in the absence of evidence that plaintiff desired to haul wood to market over such road. Wicks V. Ross, 37 Mich. 464. 1. Ross v. Thompson, 78 Ind. 90. 2. Platt v. Chicago, etc., R. Co., 74 Iowa 127, 37 NW 107. Тех. Galveston, etc., R. Co. v. Baudat, 21 Tex. Civ. A. 236, 51 SW 541. [a] Loss of sales of plaintiff's produce by cutting off access to market. Galveston, etc., R. Co. v Baudat, 21 Tex. Civ. A. 236, 51 SW 541. [b] Loss of profits. - Barnes v. Midland R. Terminal Co.. 218 N. Y. 91, 112 NE 926 [mod 147 App. Div. 89. 131 NYS 750 and rev 161 App Div. 621, 146 NYS 1033]. 3. American Furniture Co. V. Batesville, 139 Ind. 77, 38 NE 408. 9. Jackson v. Kiel. 13 Colo. 378. 4. Hall v. Kauffman, 106 Cal. 451.22 P 504, 16 AmSR 207, 6 LRA 254. 10. 39 P 756; Turpin v. Dennis, 139 Ill. Cleveland, etc., R. Co. V. 274, 28 NE 1965. See generally Ap-Christie, 178 Ind. 691, 100 NE 299: peal and Error $$ 636-800. Martin v. Marks, 154 Ind. 549, 57 NE 12. Mellick V. Pennsylvania R Co., 203 Pa. 457, 53 A 340 [rev 17 Pa. Super. 12]. [a] Notice to remove obstruc-249. tion.-Defendant cannot. on appeal, 11. Louisville, etc., R. Co. V. object that the notice to remove the Whitley County Ct., 49 SW 332, 20 obstruction was not sufficient, where KyL 1367. such notice has been put in evidence on the trial without objection, and a finding that it was given has not been attacked in the specifications 13. Hershey v. Kerbaugh, 242 Pa. of insufficiency of evidence. Hall v. 227. 88 A 1009. Kauffman. 106 Cal. 451, 39 P 756. 14. New Basin Canal, etc.. Road 5. Bradford v. Hume, 90 Me. 233. v. H. Weston Lumber Co., 109 La. 38 A 143. See generally Appeal and 925. 33 S 923. Error §§ 2830-2877. 88. Bisher v. Richards, 9 Oh. St. 6. See Costs 15 C. J. p 1. 15. Tutwiler Coal, etc., Co. v. Nail, 141 Ala. 374, 37 S 634. of double damages in case of a willful obstruction.16 Where the entire claim is for damages peculiar to plaintiff and no recoverable damages are alleged in the complaint, the existence of nominal or general damages cannot be presumed from the mere wrongful act alleged.17 On the question of damages in an action by a private person a road is not to be considered a public way unless actually in condition for use.18 Where the action is brought by a town or other governmental subdivision, the measure of damages is the amount which has been or will be necessarily expended in making repairs,19 and if the injury requires the building of a new road in a different location the additional expense of maintaining such road is an element of damages.20 But in such action inconvenience or injury to the traveling public cannot be considered.21 16. Wood Mosaic Co. v. Britt, 150 Ky. 357, 150 SW 355. 17. Walls v. Smith, 167 Ala. 138, 52 S 320, 140 AmSR 24. 18. Wicks v. Ross, 37 Mich. 464. Existence and legality of highway generally see supra § 373. 19. Pittsburgh, etc., R. Co. v. Iddings, 8 Ind. A. 504, 62 NE 112; Carlson v. Allen, 90 Kan. 457, 135 P 669; Big Sandy R. Co. v. Floyd County, 101 SW 354, 31 KyL 17; Brookfield v. Walker, 100 Mass. 94. 20. Monroe v. Connecticut River Lumber Co., 68 N. H. 89, 39 A 1019; Troy v. Cheshire R. Co., 23 N. H. 83, 55 AmD 177. 21. Big Sandy R. Co. v. Floyd County, 101 SW 354, 31 KyL 17. 31 [394] 5. Penalties 22-a. Liability.23 In addition to the civil remedies just enumerated,24 it is frequently provided by statute that a penalty may be imposed, after notice or order to remove,25 for encroachments and obstructions 26 made willfully,27 on a public highway 28 legally laid out,29 but not generally on a highway by user,30 although under some statutes roads by prescription are held to be included. Such statutes being penal must be strictly construed.82 Recovery may be denied where the obstruction is slight 33 or does not interfere with travel.34 Where the statute imposes a penalty on one who injures a road by its unusual use, and fails to repair it after notice, it is not necessary that the road should have been a good road before it was injured.35 Under a statute imposing a penalty for willfully obstructing a ditch constructed for 700; Willson v. Gifford, 42 Mich. 454, 27. Meacham v. Lacey, 133 Ill. A. 4 NW 170; Gregory v. Stanton, 40 208; Hines v. Darling, 99 Mich. 47, Mich. 271; Campau v. Button, 33 57 NW 1081; Ely Tp. Highway Mich. 525; Roberts V. Cottrellville Comrs. v. Ely, 54 Mich. 173, 19 NW Highway Comrs., 25 Mich. 23; Parker 940; State v. Castle, 44 Wis. 670. v. Peo., 22 Mich. 93; Pettinger v. Peo., 20 Mich. 336. Y. 1 28. Kane v. Farrelly, 192 Ill. 521, 61 NE 648; Magnolia v. Kays, 205 Ill. A. 152; Little v. Denn, 1 Keyes (N. Y.) 235, 34 How Pr 68. [a] Penalty for purposely injuring sidewalk imposed under some Mo.-Boonville Spec. Road Dist. v. statutes. Anchor v. Stewart, 158 Ill. Fuser, 184 Mo. A. 634, 171 SW 962. A. 205 (defendant not liable where N. Y.-Sardinia v. Butler, 149 N. he acted in good faith). 505, 44 NE 179; Doughty v. Brill, [b] Obstructions held not willful. Abb. Dec. 524, 3 Keyes 612 [aff-Meacham v. Lacey, 133 Ill. A. 208 36 Barb. 488]; Talmage v. Hurtting, (violation unintentional and techni29 N. Y. 447 [aff 39 Barb. 654]; cal merely); State v. Smith, 52 Wis. Corning v. Head, 86 Hun 12, 33 NYS 134, 8 NW 870; State v. Preston, 34 360; Alpaugh v. Bennett, 59 Hun 45, Wis. 675 (obstruction created in good 12 NYS 398; Jamaica Highway faith). Comrs. v. Van Allen, 32 Hun 61; Saunders v. Townsend, 26 Hun 308; Briggs v. Doughty, 7 Hun 82; FowCycler v. Mott, 19 Barb. 204; Wiggins v, Tallmadge, 11 Barb. 457; Olendorf V. Sullivan, 13 NYS 6; Baylis v. Rooe, 1 Silv. Sup. 356. 5 NYS 279; Paine v. East, 15 NYWkly Dig 281; Fitch v. Kirkland Highway Comrs., 22 Wend. 132; Fleet v. Youngs, 7 Wend. 291; Parker v. Van Houten, 7 Wend. 145; Pugsley v. Anderson, 3 Wend. 468; Bronson V. Mann, 13 Johns. 460; Sage v. Barnes, 9 Johns. 365; Spicer v. Slade, 9 Johns. 359; Bisbee V. Mansfield, 6 Johns. 84; Rue v. Sprague, 1 Johns. 510. 22. Penalties: Generally see Penalties [30 1331]. Obstruction of city streets see Municipal Corporations [28 Cyc 906]. Defenses generally see supra §§ 374-376. 23. What constitutes obstruction or encroachment see supra § 372. 24. See supra §§ 378-393. 25. See supra § 379. 26. See statutory provisions; and: Cal. Smith v. Talbot, 77 Cal. 16, 18 P 795; Bailey v. Dale, 71 Cal. 34, 11 P 804. Colo.-Eaton v. Peo., 30 Colo. 345, 70 P 426. Conn. Blakeslee v. Tyler, 55 Conn. 397. 11 A 291; Canfield v. Mitchell, 43 Conn. 169. Oh. Higgins v. Grove, 40 Oh. St. Pa. Meeker v. Com., 42 Pa. 283; S. C.-Woodward v. South Caro- NW 870; State v. Gillen, 49 Wis. 683, Existence and legality of highway generally see supra § 373. 29. JI.-Ohio, etc., R. Co. v. Peo., 39 Ill. A. 473. Ind.-Davis v. Nicholson, 81 Ind. 183. Miss. Illinois Cent. R. Co. V. State, 71 Miss. 253, 14 S 459. Mo.-Wright v. Doniphan, 169 Mo. 601, 70 SW 146. 349. N. Y.-Fowler v. Lansing, 9 Johns. 495. Pa.-Clark v. Com., 33 Pa. 112; Calder v. Chapman, 8 Pa. 522; Com. v. Alexander, 2 Chest. Co. 267. Tenn.-Blackmore v. Penn, 4 Sneed 447. Va.-Bailey v. Com, 78 Va. 19. 93. Ill-Lovington Tp. v. Adkins, 232 Ill. 510, 83 NE 1043; Seidschlag v. Antioch, 207 Ill. 280. 69 NE 949; Samuell v. Sherman, 170 Ill. 265, 48 NE 576; Madison Tp. v. Gallagher, Vt.-State v. Smith, 54 Vt. 403. 159 Ill. 105, 42 NE 316; Boyd v. Farm Wis.-State v. Wertzel, 84 Wis. Ridge, 103 Ill. 408; Wragg v. Penn 344, 54 NW 579; State v. Pomeroy, Tp., 94 Ill. 11. 34 AmR 199; Kile v. 73 Wis. 664, 41 NW 726; State v. Yellowhead, 80 I11. 208; Partridge v. Leaver, 62 Wis. 387, 22 NW 576; Snyder, 78 Ill. 519; Waddle v. Dun-State v. Egerer, 55 Wis. 527, 13 NW can, 63 Ill. 223; Havana v. Biggs, 461; State v. Smith, 52 Wis. 134. 8 58 Ill. 483; Chatham v. Mason, 53 Ill. 411; Sweeney V. Peo.. 28 Ill. 208; Lewiston v. Proctor, 27 Ill. 414; Ferris v. Ward, 9 Ill. 499; Manteno v. Surprenant, 210 111. A. 438; Canteen [a] A distinction between ob- Wis.-State v. Leaver, 62 Wis. 387, v. Weber, 199 Ill. A. 24; Williams v.structions and encroachments is 22 NW 576; State V. Wertzel. 62 Hardin, 46 Ill. A. 67; Chicago, etc., sometimes made by statutes which Wis. 184, 22 NW 150; State v. BabR. Co. v. Peo., 44 Ill. A. 632; Brown provide different proceedings or pen-cock, 42 Wis. 138. v. Barrett, 38 Ill. A. 248; Rice v.alties therefor. Gorham v. Withey, 31. Menard County Road Dist. No. Chicago, etc., R. Co., 30 I. A. 481; 52 Mich. 50, 17 NW 272 (action for 1 v. Beebe, 231 III. 147, 83 NE 131 Bloomington V. Graves, 28 Ill. A. penalty does not lie for obstruction [aff 134 Ill. A 583]: Pleasant View 614; Scott v. New Boston, 26 Ill. A. under statutes authorizing recovery v. Day, 155 Ill. A. 120; Scott v. New 108; Canoe Creek v. McEniry, 23 Ill. of penalty for encroachment); Grand Boston, 26 Ill. A. 108; Littel v. Denn, A. 227; Tully v. Northfield, 6 Ill. A. Rapids v. Hughes, 15 Mich. 54; Neale 34 N. Y. 452; Devenpeck v. Lamv. State, 138 Wis. 484, 120 NW 345 bert, 44 Barb. (N. Y.) 596; Fowler (post set three feet from traveled v. Mott, 19 Barb. (N. Y.) 204; Baytrack of road may constitute ob-lis v. Rooe, 1 Silv. Sup. 356, 5 NYS struction within the statute provid-279. 356. Ind. Nowels v. Alter. 53 Ind. 18; Aldrich v. Hawkins. 6 Black f. 125. Iowa.-Davis v. Pickerell, 139 Iowa 186, 117 NW 276. Ky. Com. v. Prall, 141 Ky. 560, 133 SW 217. ing penalty for obstruction, and not 32. Boonville Spec. Road Dist. v. Mich-Hines v. Darling, 99 Mich. 47, 57 NW 1081; White v. Leonidas Highway Comrs., 95 Mich. 288, 54 NW 875; Varden v. Ritchie, 86 Mich. 197, 48 NW 1085; Osborn v. Longsduff, 70 Mich. 127, 37 NW 923; Greg- As cumulative remedy see infra ory v. Knight, 50 Mich. 61, 14 NW§ 402. 33. Lovington Tp. v. Adkins, 232 Ill. 510, 83 NE 1043. 34. Higgins v. Grove, 40 Oh. St. 521. See generally supra § 372. 35. Com. v. Prall, 144 Ky. 577, 139 SW 798. draining a highway, the fact that the ditch was improperly laid out is no defense;36 but it may be shown that the acts complained of did not interfere with the drainage.37 A town which has become entitled to a penalty is not deprived of its right thereto by the fact that after the suit was brought that portion of its territory which includes the place where the obstruction exists was set off and incorporated as a village.3 38 [395] b. Proceedings (1) Nature and Form. In most jurisdictions actions to recover statutory penalties for the obstruction of highways are civil and not criminal proceedings.39 Such penalty cannot be recovered in an action for an injunction.40 But under some statutes causes of action to abate an encroachment and to recover a penalty for its maintenance may be united. A qui tam information will not lie to recover a penalty under a statute providing that one half the penalty shall go to the informer, to be recovered on warrant, petition, or action.42 41 46 43 [§ 396] (2) Jurisdiction and Limitations. The jurisdiction of the court is governed by local law, and in many states it is conferred upon justices of the peace; but since issues concerning the title to real property are not generally triable before justices of the peace 45 a removal of the action to a higher court sometimes becomes necessary if such issue is properly raised, although it has been held that the action is within the justice's jurisdiction, where title is only incidentally involved.47 Where there are repeated violations of the statute whereby separate penalties are incurred, the offense is a continuing one, and a recovery may be had for the penalties incurred within the statutory period before Hines v. Darling, 99 Mich. 47, 125. 36. 57 NW 1081. 37. Com. v. Lucas, 23 Pa. Co. 277. Canteen v. Weber, 199 Ill. A. 24. 38. Defenses generally see supra §§ 374-376. Ill. Snyder, 78 39. Partridge v. 519; Havana v. Biggs, 58 Ill. 483; Canteen v. Weber, 199 Ill. A. 24; Indianapolis, etc., R. Co. v. Peo., 32 Ill. A. 286 [aff 122 Ill. 506, 14 NE 261]; Washington Tp. v. Ratts, 54 Ind. A. 229, 101 NE 842; State v. Smith, 52 Wis. 134, 8 NW 870; State v. Hayden, 32 Wis. 663. But see Underwood v. Ankrum, 190 Ill. A. 365 the name of (a proceeding in town to recover a statutory penalty for obstructing a highway is in the nature of a criminal action); Tully v. Northfield, 6 Ill. A. 356 (action is in its nature quasi criminal). a [a] In Michigan it has been held that the penalty for obstructing a highway cannot be enforced by indictment or information. Pettinger v. Peo., 20 Mich. 336. 40. Sierra County v. Butler, 136 Cal. 517, 69 P 418. 41. Bailey v. Dale, 71 Cal. 34, 11 P 804. 42. Hendrick V. Andrick, 1 Va. Cas. (3 Va.) 267. the commencement of the action, although those incurred previous to that period are barred.48 But where the act for which the penalty is incurred is not in its nature a continuing one, the period of limitation is not extended.49 [§ 397] (3) Parties. Where the statute does not provide who shall bring an action for a penalty, it is properly instituted in the name of the state. However, the statutes generally direct by whom such proceedings shall be brought.51 Thus it is frequently provided that the penalty may be recovered by the highway officers of the district.52 But commissioners of highways of two towns cannot join as plaintiffs, even though the highway encroached upon is on the dividing line between the towns.53 So the statute may authorize a recovery of the penalty by the trustees of the township,5 or by any private person who shall sue for the same;55 and under some statutes giving a private person a right of action in the name of the town, plaintiff, on appeal from justice's court to the circuit court, may, on giving bond for costs, have the town substituted as plaintiff.56 If the action is improperly instituted in the individual names of the highway commissioners rather than in the name of the district in which the offense was committed, the defect is waived by defendant proceeding to trial upon the merits. Where, after notice by a road overseer to remove an obstruction, the road district was consolidated with another district, an action for a penalty was properly brought by the overseer in the name of the latter district.58 Where several persons are named in an order and notice to remove an encroachment, an action to recover the penalty for failure to do so will lie against them severally as well as Ky.. Cincinnati, etc., R. Co. v. Baughman, 116 Ky. 479, 76 SW 351, 25 KyL 705. 210. [b] Title not involved.-Evidence of where the highway was, and that the obstruction was not in the highway, relates to boundary lines merely, and not to title. Little v. Denn. 1 Keyes (N. Y.) 235, 34 How Pr 68. Dolton v. Dolton, 201 Ill. 155. 66 NE 323; Burton Tp. v. Tuttle, 30 Oh. St. 62. Mass.-Hall v. Kent, 11 Gray 467. Wis. State v. Gillen, 49 Ill. 683, 6 [a] In Mississippi the justice has jurisdiction only after judgment of board of police. Hairston v. Francher, 15 Miss. 249. 48. Boonville Spec. Road Dist. v. Fuser, 184 Mo. A. 634, 171 SW 962; Bufford v. Hinson, 3 Head (Tenn.) 573; Londonderry v. Arnold, 30 Vt. 401. Limitation of actions for penalties generally see Limitations of Actions [25 Cyc 1149]. 49. Wallingford v. Hall, 64 Conn. 426, 30 A 47. [b] Concurrent jurisdiction of circuit court.-(1) An action to recover the statutory penalty for failure to remove an encroachment, as ordered by the highway officers, inay [a] Illustration.-Where the statbe brought either in the circuit court ute merely prohibited the making of or before a justice of the peace. an excavation, a violation of the State v. Egerer, 55 Wis. 527, 13 NW statute is not in its nature a continu461. (2) A statute declaring that ing act, although such excavation is a party may be indicted or sued be-left open. Wallingford Borough v. fore a justice of the peace for ob- Hall, 64 Conn. 426, 30 A 47. structing a highway does not deprive the circuit court of jurisdiction. Peo. v. Young, 72 Ill. 411. 45. See Justices of the Peace [24 Cyc 450 et seq]. 50. Dover v. Tawressey, 16 Del. 285, 43 A 170; Peo. v. Young, 72 Ill 411. 51. See statutory provisions. Bailey v. Dale, 71 Cal. 34, 11 P 804; Rice v. Chicago, etc., R. Co., 30 III. A. 481; Allen v. Hiles, 67 N. L. 135, 50 A 440; Cook v. Harris, 53. Bradley v. Blair, 17 Barb. (N. Y.) 480. 54. Burton Tp v. Tuttle, 30 Oh. St 62. 46. State v. Cotton, 29 Minn. 18%, 12 NW 529; Little v. Denn, 34 N. Y. 43. See statutory provisions; and 452; Little v. Denn, 1 Keyes (N. Y.) J. Brushy Mound V. McClintock, 146 235, 34 HowPr 68; Saunders v. 61 N. Y. 448. Ill. 643, 35 NE 159; Tully v. North- Townsend, 26 Hun (N. Y.) 308; Parfield, 6 Ill. A. 356; Parker v. Van ker V. Van Houten, 7 Wend. (N. Houten, 7 Wend. (N. Y.) 145; Wood-Y.) 145; State v. Huck, 29 Wis. 202; ward v. South Carolina, etc., R. Co., State v. Doane, 14 Wis. 483. 47 S. C. 233, 25 SE 146; State V. [a] To raise such issue (1) deEgerer, 55 Wis. 527, 13 NW 461; fendant must, in his answer, deny State v. Gillen, 49 Wis. 683. the existence of the highway, aver44. Ill-Chatham v. Mason, 53 Ill.ring the title and possession of the 411; Ferris v. Ward. 9 Ill. 499; Road locus in quo to be in himself. Dist. Comrs. v. Swain, 168 Ill. A. 674; v. Blonien, 36 Wis. 303. (2) He must Rice v. Chicago, etc., R. Co., 30 II. also give a bond to answer a suit in A. 481. See Crosby v. Gipps, 19 Ill. a court of proper jurisdiction. Little 309 (for obstructing but not for con- v. Denn, 1 Keyes (N. Y.) 235. 34 tinuing). How Pr 68: Fleet v. Youngs, 7 Wend. (N. Y.) 291. Ind.-Aldrich v. Hawkins, 6 Blackr. State 55. Samuell v. Sherman, 170 II 265, 48 NE 576; State v. Galvin, 27 6 Minn, 16. NW 380; Higgins v. Grove, 40 Oh. St. 521. 56. Samuell v. Sherman, 170 m 265, 48 NE 576; Sell v. Ernsberger, 8 Oh. Cir. Ct. 449, 4 Oh. Cir. Dec. 100. 57. Road Dist. Comrs. v. Swain, 168 Ill. A. 674. 58. Boonville Spec. Road Dist v. Fuser. 184 Mo. A. 634, 171 SW 962; |