#### Carpenter vs. Mann and others.

A private individual cannot maintain an action in his own name to recover damages for an obstruction to a highway and to restrain a continuance of the nuisance, where he does not aver or prove special damages to himself from such ob_ struction.

APPEAL from tbe Circuit Court for *Rock*County.

This action was for maintaining obstructions upon an alleged highway, and tbe complaint, without averring special damages to tbe defendant, demanded, damages and an injunction. The answer denied .that tbe land on which tbe alleged obstructions were placed was a highway. The referee to whom tbe cause was referred for trial, reported that said land wag, a highway; tbat tbe defendant bad obstructed it as alleged in tbe complaint, and tbat the plaintiffs were entitled to nominal damages and an injunction. Tbe defendants excepted to tbe report on tbe ground tbat tbe evidence did not show tbe land in question to be a highway; but tbe report was confirmed, and judgment rendered accordingly.

*R. H. Mills*and *S. J. Todd,*for appellants:

If tbe land alleged to be a highway is such in fact, tbe obstruction by tbe defendants is a public nuisance, and tbe plaintiff cannot maintain this action unless be has suffered or is likely to,suffer an injury “ quite distinct from tbe public in general.” 2 Story’s Eq. Jur., §§ 923, 924; Angelí on Highways, secs. 283, 284, and note 2; 2 Johns. Ch., 371; 6 id., *156439; 1 Sandf. CL, 1; 7 Cow., 609; 8 id., 146; 5 Denio, 213 ; 7 Abbott’s Pr. R, 108; 19 Pick, 147; 2 Wis., 384; 4id., 454. 2. An action to restrain and prevent a public nuisance is not provided for by our statutes. Such, an action must therefore be governed by the general principles regulating equity cases of this character, and must be brought in the name of the state or of the attorney general. Angelí on Highways, sec' tion 280 et seq., and cases there cited.

*J. 0 Converse,*for respondent,

contended that it followed from the opinion in *Gardner vs. Tisdale,*2 Wis., 153, that any member of the public might maintain an action for the obstruction of a highway. Counsel also cited4 Paige, 510; 6 id.) 133; 6 Peters, 431; *Attorney General and others vs. Blount,*4 Hawks, 384. He also contended that if the action was not properly brought in the name of the plaintiff, it was too late to take that objection for the first time before this court.

Other points made by the respective counsel, which related, to questions not passed upon by the court, are omitted.

*By the Court,*

DIXON, C. J.

It seems so clear to us that the judgment below must be reversed for the reason stated in the first point of the defendant’s brief, that we deem it unadvisa-ble to express an opinion upon any of the others. It was neither averred nor proved that the plaintiff had sustained or was likely to sustain any private or special injury in consequence of the alleged obstruction of the highway. The injury complained of was common to the public at large; and if this action can be maintained, then every inhabitant can have his suit. Such is not the law, and the judgment must therefore be reversed and the cause remanded with directions that it be dismissed.

Ordered accordingly,