The third count alleged that on a certain day, "and on divers other days between that day and the commencement of the suit," the plaintiff's teams, through want of repair of the road, were mired, and driven into ruts and holes, and over rocks and stones in the road, suffering thereby great injury and destruction. The fourth count alleged that plaintiff's fences, which he had erected to protect his land on the sides of the road, were broken, prostrated, and destroyed, owing to the excavation of holes and pits so near the fences as to cause the earth to fall away from them. The general issue was pleaded, and the court held on the trial that the plaintiff could not recover for any general damages he might sustain, whether resulting by reason of the insufficiency of the road, from his not attempting to travel it at certain times, or from his not being able to travel it as expeditiously as otherwise, and therefore the evidence of the plaintiff to show such general damages was excluded. The court also held that the plaintiff must be confined to proof of an injury sustained at some one time, but might take his election, and consequently his evidence to show special damages at any other time than that of the injury for which he had elected to proceed was rejected. The plaintiff excepted to both of the above rulings. The jury were charged on the evidence by plaintiff and defendants under the fourth count, that the soil in the highway could be used in a reasonable manner to repair the road running through or contiguous to the plaintiff's land, provided it was proper and necessary that clay should be put upon the sandy part, and the place where obtained was the most convenient place, but that the defendants, in obtaining the clay, were bound to use ordinary care and prudence with reference to the plaintiff's rights, and were liable for a want of it. The plaintiff excepted to this charge. A verdict for the plaintiff was returned by the jury.

Smalley and Phelps, for the plaintiff.

A. Peck, for the defendants.

By Court, BENNETT, J. It is to be taken, in this case, that the business of the plaintiff called upon him to use the road in the manner set forth in the two first counts in this declaration; and the first question is, Was the county court right, as matter of law, in holding that the plaintiff could not recover for any general damages, which he might have sustained, whether they resulted from his not attempting to travel the road, at particular times, on account of its general insufficiency, or from his not

being able to travel it as expeditiously and carry as large loads, as he might and otherwise would have done?

To enable a person to maintain a private action for the erection of a public nuisance, he must have sustained some damage more peculiar to himself than to others, in addition to the inconvenience common to all; and I understand this position to be admitted by the plaintiff's counsel. Unless this were the rule, the doctrine, that a public nuisance is to be proceeded against only by indictment, would be abrogated. Though the general rule is well settled, yet questions have often arisen in respect to its application; and in regard to what shall constitute such a peculiar damage, as to give the right of a private action, there seems to be some conflict in the cases.

Some have assumed the ground, that the injury must not only be peculiar to the party, but also direct, and not consequential; and of this description are the cases of Paine v. Partrich, Carth. 194, and Hubert v. Groves, 1 Esp. 148. In the latter case it appeared, that the plaintiff had, by reason of the obstruction of the public highway, been prevented from carrying on his business in so advantageous a manner as he had a right to do, and was obliged to draw his coal, timber, etc., by a circuitous and inconvenient way; yet Lord Kenyon nonsuited the plaintiff, and the king's bench refused to set aside the nonsuit. The opinion of Lord Holt, in the case of Iveson v. Moore, 1 Ld. Raym. 486, seems to be based upon the same ground; and though the court of king's bench were equally divided in opinion, yet, upon consultation before all the justices of the common pleas and barons of the exchequer, they were all of opinion, that the action well lay.

The grounds of that opinion I am not aware are in print; but from a manuscript note made by Willes, chief justice of the common pleas, it would appear, that the reason, which the judges mainly went upon, was, that it sufficiently appeared, that the plaintiff must and did suffer special damage, more than others, because it was set forth, that the only way to come to the plaintiff's coal pits from one part of the country was through the obstructed way; and consequently they thought, without an averment of the loss of customers, it should be taken, that the plaintiff had suffered particularly in respect to his trade, by the defendant's wrong: See Chichester v. Lethbridge, Willes, 74, note The case came up upon a motion in arrest for the insufficiency of the declaration, and the allegation was, that the way was stopped up, so that carts and carriages could not come to the plaintiff's colliery.

a.

I consider, however, at the present day, that the decided balance of authority sustains the position, that it is sufficient to give a private action for the erection of a nuisance upon a public highway, if there be peculiar or special damage resulting therefrom, though consequential and not direct. The case of Wilkes v. Hungerford Market Co., 2 Bing. N. C. 281; S. C., 29 Eng. Com. L. 336, and many others are of that description.

The claim which the plaintiff made for damages arising from his not attempting, at certain times, to travel the road, because of its general badness, is hypothetical; and I apprehend that there is no case which would warrant the position that this could constitute such peculiar damage as to give a private action for a public nuisance. If, however, this were an action on the case at the common law to recover damages for an obstruction of the highway by some positive act, whereby the plaintiff was delayed in passing it, or enabled to carry less loads than he otherwise might and would have carried, it might well admit of a question whether this would not be such a special damage as to give a private action. The case of Hart v. Basset, T. Jones, 156; 4 Vin. 519, was one in which the plaintiff was entitled to receive tithes, and by means of the obstruction was forced to carry them a circuitous route. The allegation in the declaration was, that he was forced to carry them a longer and more difficult way. This was the only damage proved on trial, yet the action was held well to lay.

The case of Rose v. Miles, 4 Mau. & Sel. 101, was where the plaintiffs were compelled to carry their goods over land, at an increased expense, in consequence of the defendant's mooring a barge across a public navigable canal. If a person is hindered. and impeded in the transportation of his goods by reason of obstructions, the injury seems to be of the same kind, though perhaps less in degree than if he was compelled to take a circuitous route. There are other cases analogous in principle.

But we do not think it necessary to decide the question whether the evidence offered under the two first counts showed such a special injury as would, upon common-law principles, have given a private action, in the case of an obstruction raised by the wrongful act of an individual. In this state, towns, by statute, are laid under obligation to keep and maintain their public highways and bridges in sufficient repair, and for neglect in this particular are liable to indictment. The statute also provides, that if any special damage shall happen to any person, his

team, carriage, or other property, by reason of the insufficiency of any highway, or bridge, in any town, which such town is liable to keep in repair, the person sustaining such damage shall have a right to recover the same in an action on the case.

I take it to be well settled, that if the statute had not given the action, no individual who had sustained special damage through the neglect of the town to repair their roads, could maintain a suit. It may be said that where an individual sustains an injury by the neglect or default of another, the law gives a remedy. But that principle does not apply where the public are concerned, as it may well be said that it is better that an individual should sustain an injury than that the public should suffer an inconvenience. In Brooke's Abridgment, title Action on the Case, pl. 93, it is said, if a highway be out of repair by which a horse is mired (to his injury), no action lies. The reason assigned is, that the public are bound to repair, and the remedy is by presentment. Upon the authority of the case cited in Brooke, the court of king's bench, in the case of Russell et al. v. Inhabitants of the County of Devon, 2 T. R. 667, held, that no action would lie against the county to recover damages for an injury sustained by reason of a bridge being out of repair which the county were bound to repair.

If, then, upon common-law principles, no action could be maintained against a town for an injury growing out of their neglect, recourse must be had to the statute to learn how far they are made liable to a civil action. We think it must not only be a special damage, in the language of the statute, but direct either to the person of the traveler, to his team, carriage, or other property, and that the damage complained of must result to the person of the traveler or his property while he or the property was in a state of transition over the road or bridge. In the connection in which it is used, it is evident that the statute, though it uses the expression "to any person," has allusion to the rights of the person of the traveler; and we think it was the intention of the legislature in the use of the words "or other property," following the words "team" or "carriage," to confine the statute to such property as should be on the road. If the expression" or other property" is to be understood in an unlimited sense, it would seem to follow, that if the insufficiency of the road operated to the injury of the traveler's estate, though remotely and indirectly, as by compelling him to be at the expense and loss of time in traversing a longer and more difficult way, as in the case of Hart v. Basset, he would have his private

action. We do not think the legislature intended any such lat itude of construction.

If this be so, how do the defendants stand? They were incorporated in 1805, and are made liable to indictment for the insufficiency of the road, the same as towns. The statute also declares, that "they shall be liable to pay all damages, which may happen to any person, from whom toll is demandable, which may arise from want of repairs on said road:" See acts of 1805, p. 154, sec. 5. Though the expression, "all damages," may seem broader than the act in relation to towns, yet we think it was only the intention of the legislature to substitute this corporation in the place of the town, and to make their liability co-extensive with that of towns. No reason is perceived why it should be more onerous than that of towns. The town is relieved from all liability, as it respects this road; the public have their remedy by indictment; and why should the rights to individuals be more extended than against towns? In the charter of the Royalton and Woodstock Turnpike Company, granted in 1800, the phraseology in regard to their liability is the same as in the defendants' charter; and in the case of Richardson et al. v. R. & W. Turnpike Co., 6 Vt. 496, it was held, that they were liable only to the same extent as towns under the general statute. We then come to the conclusion that the court below were right in regard to the substance of the thing, that is, that the testimony offered under the two first counts would not lay the ground of a legal right to recover, though the offer were proved to its full extent.

The question then arises, Was it error in the county court, upon the proceedings in this case, not to submit the evidence to the jury and have the plaintiff's damages assessed under these counts? I am aware it has been said that if the defendant plead the general issue, he can not object to the evidence, or to a verdict's being found for the plaintiff, if the evidence prove the declaration, though the declaration do not set up any legal cause of action. I apprehend that this position needs at least some qualification, and that the court may, in their discretion, if they are satisfied that no cause of action is stated in the declaration and none proved on trial, stop the cause on trial, although the defendant have traversed the declaration, instead of demurring to it. It does not follow from this, that it would be error in the court not to do it, and to leave the issue to be found against the defendant, and let him get rid of the verdict in the best way he can.