ALDRICH v. HOWARD, R.I., Judgment, Law, casemine.com

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AMES, C.J.

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ANSON W. ALDRICH v. GEORGE A. HOWARD.

Currey, with whom was R.W. Greene, for the plaintiff: —

I. The act concerning the erection of buildings in the City of Providence (Ordinances of the City of Providence, 78) prescribes the mode in which houses or other buildings must be erected in certain parts of said city. It creates an obligation upon owners and builders to construct all buildings precisely according to the terms of the act. The design of the act is, to protect the owners of buildings from the damage or destruction of their property from fire. It is an act for the benefit and protection of such owners, and vests a right in them to hold and possess their property free from nuisances of the character complained of in the fourth and fifth counts of the plaintiff's declaration.

II. In cases of public or common nuisances or violations of law, the offending party is liable to an indictment for the wrong or damage done to the public. Such a party is also liable to an action on the part of any individual who has suffered or sustained any particular or special wrong; and an action brought by an individual, for such wrong, is not barred by the pendency of the indictment in behalf of the State for the general wrong or damage. 1 Hillard on Torts, p. 77, § 12; see also pp. 78 and 79; Stetson v. Faxon, 19 Pick. 147; Lansing v. Smith, 4 Wend. 9.

III. That the liability of the defendant is created by statute, and not by the common law, is no bar to the present action. The same remedies exist in relation to liabilities created by statute, as to those created by the common law. The limitation is in cases when, by the express terms of the statute, a special remedy is given, and there are negative words excluding any others. 1 Hillard on Torts, p. 109, § 26; Ib. p. 76, and cases cited; Couch v. Steel, 77 E.C. Law, 3 Ellis v. Blackburn, 402.

IV. It is true that the 8th and 9th sections of the act (p. 83 of the City Ordinances) provide a penalty by indictment or information, for violation of the act; and the 12th section (Ib. 84) provides, that all assessments and one-half of all fines and penalties shall inure to the City of Providence, and the other half of such fines and penalties, to the State; but the plaintiff claims that these provisions of the act relate only to the general injury or damage done to the public; that there is nothing contained in the statute forbidding the bringing of suits for private or special damage, and that the penalty prescribed by the statute is simply cumulative upon the right of the individual to bring such actions. For similar cases, see Couch v. Steel, 77 E.C. Law, 402; Barden v. Crocker, 10 Pick. 383; Hayes v. Porter, 9 Shep. 371; Rowning v. Goodchild, 2 Wm. Bl. 909.

V. The plaintiff sets forth, in the fourth and fifth counts of his declaration, that he has suffered special and particular damage from the erection and maintenance of the defendant's stable. He is therefore entitled to have said counts supported, and his demurrer sustained.

James Tillinghast, with whom was Bradley, for the defendant:

The plaintiff's action, under these counts, is based entirely upon the statute therein referred to, — generally called "the Wooden Building Act," passed October, 1843. City Ordinances, 78-85. The pleas bring upon the record the facts, that an indictment for the same alleged violations of this statute of which the plaintiff now complains, found at the instigation of the plaintiff, is now actually pending in this court against the defendant, and that no conviction has yet been had thereon, or upon any other complaint whatever under this statute.

I. Where a statute merely prohibits the exercise of a common law right and imposes a penalty for its violation, recoverable in a specified mode, a private individual cannot maintain his common law action for its violation. Stevens v. Jeacocke, 11 Adol. and Ellis, (N.S.) 731; Barden v. Crocker, 10 Pick. 383; Elder v. Bemis, 2 Met. (per Wilde, J.) 604; 1 Chitty's Plead. (6 Am. ed.) 127, 128, 164. Many courts have so held, even where the statute confers a right upon the plaintiff, e.g., Almy v. Harris, 5 John. 175; Lang v. Scott, 1 Blackford, 405; Ward v. Severance, 7 California, 126; Shorter v. Smith, 9 Georgia, 517.

II. And even where the violation of the statute amounts to a nuisance, — a fortiori, where it merely infringes a right conferred by statute, — there is no private right of common law action unless the damage sustained thereby be peculiar to the plaintiff, and not a damage common to the community, or to the class to which the plaintiff belongs, though more injurious to him than to others. Lansing v. Smith, 8 Cowen, 146; Proprietors Quincy Canal v. Newcomb, 7 Met. 276, (283); Smith v. Lockwood, 13 Barb. 209.

III. Nor, in either case, does such action lie, where the damages are either remote or are merely anticipated, or merely depreciate the value of the plaintiff's property. Bathishill v. Reed, 37 Eng. Law and Eq. 317; Eames v. New England Worsted Co., 11 Mct. 570; Thayer v. Brooks, 17 Ohio, 489; Chidsey v. Canton, 17 Conn. 475.

IV. But here the statute under consideration, so far from conferring any right upon the plaintiff, leaves the defendant free to exercise his common law right to maintain this building, if he chooses to pay therefor the annual tax imposed by the seventh section.

The "act concerning the erection of wooden buildings in the City of Providence," passed in October, 1843, imposes the duty upon a person building within the prescribed limits, in the City of Providence, of building in the manner, of the materials, and of the size enacted; and as the pecuniary penalties fixed by the public offence only: and an adjoining proprietor, specially injured by a violation of the statute, has his redress by action of the case against the violator.

AMES, C.J.

The question raised by this demurrer is, whether the fourth and fifth counts of the declaration state a cause of action. They allege, in substance, that the defendant, by the erection of a large wooden building, constructed in violation of a statute of the State regulating the erection of buildings within what are called the fire limits of the City of Providence, has so increased the risk from fire to the plaintiff's dwelling house, stores, and hotel, next adjoining, that he has been unable to rent the same, and has been obliged to pay greatly enhanced rates, to insure them. The plaintiff, as an adjoining proprietor, is certainly within the protection of the act, which regulates with minuteness the mode of building in reference to the safety of the houses of such proprietors from fire, and has stated, in these counts, a special pecuniary loss consequent upon the defendant's illegal act, for which the public prosecution of the defendant can afford no redress. The special damage alleged is not, as claimed by the defendant, remote or contingent, but present, actual, and directly consequent upon the defendant's violation of law. As stated, it is peculiar to the plaintiff as an adjoining proprietor, and in excess of the injury sustained by the public, whose interests are also intended to be guarded by the act from the effects of devastating fires. In these respects, the cause of action set forth in these counts not only falls within the general rule, relating to actions of the case as derived from the equity of the statute of Westm.2d, but within that more special rule, so long ago laid down by Lord Holt, that "in every case where a statute enacts or prohibits a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage, or for the recompense of the wrong done to him contrary to the said law." 1 Com. Dig., Action upon Statute, F; Ib., Action upon the Case, A; Couch v. Steel, 3 Ellis and Blackburn, (77 Eng. C.L.R.) 411, per Lord Campbell, C.J.

As we construe this statute, it imposes upon one erecting a building within the fire limits of Providence the duty, in respect to adjoining proprietors and the public, of building it in the manner, of the material, and of the size prescribed by the act. The prohibition is imperative upon him, if he builds at all, to build as the act prescribes, and in no other manner; and quite as effectually imposes upon him the legal duty of so building, as if the statute had expressed the duty in an affirmative form. The eighth and ninth sections, which fix the pecuniary penalties for disobedience of the former sections, so far from licensing the violation of the statute upon the terms of paying the penalties, were designed simply to punish the violator according to the degree of his offence and his persistency in it, and thus to compel a compliance with the law as enacted. They are divided, when recovered, between the city and the State; and not a penny of them given in recompense to a party specially damaged. They are recoverable for the public injury, whether any one be specially damaged or not. The statute does not, as in some of the cases cited, in creating the offence, notice also the private injury, and through the penalties, give the private recompense. Had it done so, there would have been some reason for confining the party injured to the statute compensation, however inadequate it might seem to be. As it is, the party specially injured has no redress unless by the equity of the old statute of Westminster 2d, — designed to afford a remedy for every wrong not redressed by any of the formed actions of the common law, if an action of the case can afford it. We have no doubt that when a statute makes the doing or omitting any act illegal, and subjects the offending parties to penalties for the public wrong only, a party specially injured by the illegal act or omission has the right of suing therefor at the common law. Couch v. Steel, sup.; Steam Navigation Co. v. Morrison, 13 Common Bench, (4 J. Scott,) (76 Eng. C.L.R.) 581, 594, per Williams, J.; Caswell v. Worth, 5 Ellis and Blackburn, (85 Eng. C.L.R.) 849, 855, 856, per Coleridge, J.

The fourth and fifth counts of the declaration are maintained, and the pleas thereto overruled.

ALDRICH v. HOWARD

ANSON W. ALDRICH v. GEORGE A. HOWARD.

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