Johnson v. Mayor of Oakland

LTrner, J., delivered the opinion of the Court. The declaration in this case alleges, in effect, that the plaintiffs are the owners and possessors of certain real estate consisting of a garage, dwelling house, office building and other property situated on the north side of Oak Street, between Third Street on the east and 'Second Street on the west, 'in the town of Oakland, Maryland; that between the property of the plaintiffs and Second Street is a bridge by which Oak Street crosses over the tracks of the Baltimore & Ohio Railroad; that Oak Street is the shortest connection between the improved state highways leading east and west from Oakland; that the bridge referred to Was erected by ⁴³⁴ the Mayor and Town Council of Oakland many years ago, and was maintained by the municipality as an essential part of Oak Street until February, 1920; since which time it has been out of repair and closed from all traffic; that prior to the closing of the bridge in 1920 the plaintiffs conducted a layge and lucrative garage business with passing motorists, but since the bridge has been closed, the portion of Oak Street on which the plaintiffs’ property is located has become a cul de sac, and all through traffic has consequently been diverted away from the plaintiffs’ garage, and their once profitable business has been virtually destroyed, and they have thus suffered a special and substantial damage different in kind from that sustained by other citizens of the town; that the defendant municipality is charged with the obligation and vested with ample power to keep the thoroughfares of the town in proper condition for public use, but has negligently failed to repair or open the bridge on Oak Street, notwithstanding the issuance of a writ of mandamus by the Circuit Court for G-arrett County at the suit of the plaintiffs requiring the performance of that duty. A demurrer to the declaration was sustained. Judgment on the demurrer was entered in favor of the defendant for costs, and the plaintiffs have appealed.

The question raised by the demurrer is whether the declaration alleges any provable damage to the plaintiffs, from the highway obstruction mentioned, for which the present suit may be maintained. In regard to the principle of law applicable to the case there is no dispute." It is thus stated in Houck v. Wachter, 34 Md. 269 : “The obstruction of a highway is a common nuisance, and, being a wrong of a-public nature, the remedy is by indictment; it is not in itself a ground of civil action by an individual, unless he has suffered from it some special and particular damage, different not merely in degree, but different in kind from that experienced in common with other citizens. In such case the actual damage constitutes the gist of the action, and must be averred and proved.” This general principle has been ⁴³⁵ slated and applied in numerous decisions in other jurisdictions, and in the following Maryland cases subsequent to the one already cited: Schall v. Nusbaum, 56 Md. 512 ; Crook v. Pitcher, 61 Md. 510 ; Lake Roland Co. v. Webster, 81 Md. 529 ; Bembe v. Anne Arundel County, 94 Md. 327 ; Walters v. Balto. & O. R. R. Co., 120 Md. 644 ; Balto. & O. R. R. Co. v. Gilmor, 125 Md. 610 . The real problem in such cases is to determine whether the injury sued for is sufficiently distinctive to support the 'action.

In this case the closing of the bridge on Oak Street, between the plaintiffs’ property and the nearest intersecting street to the west, is alleged to have converted into1 a cul de sac the street on which their place of business is located, and to have deprived them of the trade incident to- the use of the street by motorists as the most direct course of travel through the town. In German Lutheran Church v. Baltimore, 123 Md. 152 , Chief Judge Boyd said: “Where the vacation of the street is in front of the plaintiff’s property or in the same block, so that his access, is cut off entirely, the. decisions hold either that it is a taking of the property, or at least that the owner is entitled to damages, and if under those circumstances his access is-cut off in one direction, so as to put his property in a cul de sac, perhaps most authorities hold that he is entitled tc damages.” It appeared in the ease just cited that the appellant’s property did not abut on the portion of the street which was closed, and the decision disallowing damages to the appellant was based largely upon that fact. The opinion referred to decisions holding that the owner of property which does abut on the part of the street closed is entitled to compensation if he is able to prove special damage, and said: “But it will be seen by an examination of them, that the vacation left the property in a cul de sac and in some instances there were special statutes.” The ease of Henderson v. Lexington, 132 Ky. 390 , was then cited