
    Amos D. Smith vs. The Inhabitants of Dedham.
    An owner of land, who is prevented from a convenient access thereto by reason of a defect in the highway, and thereby sustains damage, is not entitled to recover the same of the town liable to keep such highway in repair.
    -This was an action on the case, tried before Fletcher, J., and, by consent of parties, taken from the jury and reserved for the consideration of the whole court, upon the defendants’ objection, that the declaration disclosed no cause of action. If the court should be of opinion that the action could be maintained, the case was to be sent to a jury; otherwise, the plaintiff was to become nonsuit.
    The declaration was as follows:
    In a plea of the case for that, at the time of the wrongful acts and doings of the defendants hereinafter mentioned, there was and still is a town way within the limits of said town, which was duly laid out and accepted, and which said defendants are and at the time of said acts and doings were, legally bound to keep in good and sufficient repair, leading from a point on the Norfolk and Bristol turnpike, in that part of said town known as South Dedham, by, to, and through the lands of the plaintiff hereinafter mentioned; and on the first day of February last, and from that time till the day of the date of this writ, the plaintiff was and still is seized in fee simple, and possessed, and the owner of a large tract of land situated on said town way, being in all about twelve acres, and being the land formerly owned by one Elijah Bullard, and was entitled to, and needed to use and enjoy said way to his said lands; and on said first day of February, and from that date till the date hereof, said town did wrongfully and negligently suffer said town way, at and about the place where said railroad crosses the same near the land of the plaintiff, to be out of repair, dangerous, and impassable altogether, and said defect and want of repair had existed for more than twenty-four hours prior to said first of February, and said town had had reasonable and sufficient notice thereof; and by said want of repair and defect, said town way being dug entirely away to a great depth at said crossing, the plaintiff was for a long time, and is still, deprived of all access to his land aforesaid, and has lost the income thereof, and has lost the sale thereof and said land has been and is greatly lessened in value; and the plaintiff has been put to great trouble and expense in getting to his said lands in other ways, and has been otherwise greatly damaged, to the amount in all of four thousand dollars, and thereby, and by force of the statute of this commonwealth in such case made and provided, an action has accrued to the plaintiff, to recover double the damage by him, as aforesaid, actually sustained, yet the defendants, though requested, have not paid the same, but refuse so to do.
    And also for that, heretofore, viz., at the time of the wrongful acts and doings of the defendants hereinafter mentioned, the plaintiff was seized in fee and possessed of a certain tract of land in that part of said Dedham called South Dedham, being the premises purchased by the plaintiff of one Elijah Bullard ; and at the same time there was a certain way leading from the Norfolk and Bristol turnpike to said premises, which said way the defendants were and are legally bound to keep in repair, yet the defendants, on the first of February last, and on divers other days and times from that time to the date hereof, contriving in meaning to wrong and injure the plaintiff, did wrongfully and negligently fail to keep said way in repair, though the plaintiff was, as the defendants well knew, lawfully entitled, with his servants and agents, to pass the same, and needed to pass the same to come at his said lands, and omitted to repair the same, and permitted a great chasm to be dug across the same to a very great depth, being as the plaintiff believes, some fifty feet deep, and some two hundred feet wide, so that said way was utterly impassable, whereby the plaintiff was prevented from getting to his said lands, and thereby lost the rents and profits thereof, and lost the sale thereof; and his said lands were greatly lessened in value, and the plaintiff was actually damaged to the amount of four thousand dollars; and the plaintiff avers that the said want of repair had existed more than twenty-four hours prior to said first of February, and that said town and its lawful agents had notice thereof, whereby, and by force of the statutes, the plaintiff is entitled to have and recover of said town double the amount of his actual damage aforesaid; yet the defendants, though requested, have not paid the same, but refuse so to do.
    And also for that, at the time aforesaid, there was a certain highway leading from said turnpike to the lands of which the plaintiff was and is seized and possessed, which said highway the defendants were and are bound by law to keep in good and sufficient repair, and through and over which, at said times, the plaintiftj with hil ierrants and agents, had the right and had need to pass; yet the defendants, unmindful of their said duty, did not keep said way in proper repair, but suffered the same to he and remain for a long time and more than twenty-four hours out of repair and in an impassable and dangerous condition, whereby the plaintiff and his servants and agents were unable to pass the same, and whereby the plaintiff was greatly damaged and deprived of the nse and benefit of his said lands, and lost the sale thereof, and the same was greatly lessened in value, whereby the plaintiff suffered four thousand dollars actual damage, and by the force of the statute is entitled to recover of the defendants threefold the amount of the said actual damage.
    
      C. M. Ellis, for the plaintiff.
    
      G. T. Russell, for the defendants.
   Dewey, J.

This question should more properly have been raised on a demurrer to the declaration; but the case having been reported, by the consent of the presiding judge, for the whole court, upon the question whether the facts stated in the declaration disclose a cause of action, we have proceeded to consider the question as if raised upon demurrer.

The declaration does not materially differ from that in the case of Holman v. Townsend, 13 Met. 297. It more fully sets forth the particular position and interest of the plaintiff, and his ownership of a tract of land contiguous to the road, and for the use of which the road was required; but the gravamen of the complaint is substantially the same. The decision in that case fully embraces this, and applied here will require judgment to be entered for the defendants. It was there held, that the. defect in the highway must be the direct and proximate cause of the damage. It must be a damage sustained in using the road, and not a damage sustained in consequence of not being able to use it.

This is not an action at common law, and does not necessarily present the same question that would arise if an action were brought by the plaintiff against an individual for obstructing the road, so that he could not use it for the purposes of passing to his dwelling-house, or lands contiguous to the road. Great embarrassment has been experienced in marking the line limiting individual actions for particular and special injuries, and the cases where the public injury was alone the subject of redress, as will be perceived on the perusal of the numerous cases cited in the opinion of the court, in the case of Stetson v. Faxon, 19 Pick. 147.

The present case, however, differs entirely from the case of Stetson v. Faxon, which was an action at common law by one individual against another- for an obstruction in a highway, or public street, whereby a special and particular damage had accrued to the plaintiff’s property adjacent; and he was allowed to recover therefor.

This is an action wholly on the statute creating a liability on the part of the town for an injury to the person or property by reason of any defect or want of repair in the highway. It is a limited one, and not to be extended beyond the special purpose of protecting travellers from injuries while travelling on such highway; leaving the public prosecution by individuals as the remedy for neglect to keep these roads in a,proper state for travelling, or permitting them to be so encumbered by reason of some nuisance, that no traveller could attempt to use them, while in the exercise of ordinary care and prudence. Judgment for the defendants.  