The record-union., 1896-03-02

the following from Crocker VS.. Collins.
81 S. c., 327: I'VE think. therefore.
that mere adverse possession for the
statutory period of a street or alley in
town which is public highway cannot
confer title, but where such possession
is accompanied with other circum-
stances which would render it inequit-
able that the public should assert it's
rights to regain possession, there,
upon the principle of estoppel, a party
may be protected against the assertion
of right by the public in order to pre-
vent manifest wrong and injustice.
For example, when the party, either
under an honest conviction of right, has
taken possession of a portion of one Of
the streets or alleys of the town and
expended his money in erecting build
ings thereon without interference on the
part of the public, these, or perhaps
other, circumstances connected with ad-
verse possession for the statutory period
may afford good grounds for estoppel."
Our Supreme Court then proceeds to
say IF this character of estoppel may
be pleaded where justice and right re-
quire it, then it may be successfully
pleaded here, for justice to these defend
ants demands it,
But in the case of city of Pella VS..
Scholte, "a Iowa, 2S3, Judge Dillon, as
Chief Justice of the Supreme Court of
Iowa, delivering the unanimous opinion
of the court, went much further than in
the above quotation. and said: "Of
course it Is well understood that statutes
ply to the State or sovereignty. But the
principle has not. so fan as we know,
been extended to municipal or public
corporations.
ION the contrary, it has been express
ly held that those corporations are
within the statute of limitations the
same as natural persons" and the
court, in the exhaustively considered
case of Wheeling VS.. Campbell, II West
Virginia, in reviewing the authorities
on both sides of the question as to
whether the statute of limitations ap-
piled to municipal corporations, named
four States in which the doctrine of
municipal exemption was upheld,
and fifteen States in which it was
denied; and further observed while
SCAC 0QSto nave llSld lIlC 1Ol itICI QOC-
trine, we have Chancellor Kent, Judges
Redfeld, Marshall, Mcncure, Ranney
and other eminent jurists holding to the
latter, and Judge Dillon, Perhaps no
less distinguished than any of the
others on both sides of the question:
). There is another reason why it
seems to me this action cannot be main
tanned. BY Section 3493 of the Civil
Code it is declared that "a private per-
son may maintain an action for public
nuisance if it is specially injurious to
himself, but not otherwise
In order to be specially injurious to
the plaintiff the injury must be such as
does not affect him in the same manner
as the public generally; that is to say,
the inconvenience which he suffers must
be different in kind from that which is
suffered by the public. In Marini VS.
Graham, 81 Cal, 133. the case was nui-
sance for obstructing a sidewalk in San
Francisco. The court said: THE facts
upon which he (plaintifO relies as the
basis of his action to enforce an alleged
private right in himself affirmatively
show that the obstruction in the side
walk, of which he complains, is not
more injurious to him than it 10 to the
at large.
ANY injury or annoyance which he
suffered from it may be greater in de-
gree, but it is not different in kind from
that sustained by the public, therefore
he receives no special injury for which
he is entitled in law to a private action"
The court cited in support of this prin-
ciple Hopkins VS.. Western Pacific Rail-
road Company, so Cal, 1914; Bagley VS..
SO Cal, 403; Payne VS.. McKin-
ley, 81 Cal, $50; Linden VS.. Supervisors,
45 Cal, 6, to which may be added L. T.
Company VS.. S. and W. w r. Co., Al
Cal, 562. The question is too well set
tied to need reference to numerous other
authorities which might be cited.
The only question is whether the
plaintiff has made a case outside of the
rule, and we think he has not. Nothing
i'll the complaint shows it, and the
proofs fail to show that he suffers any
differently from his neighbors or the
public generally. There may be diff
ference in degree, but not in kind.
1t does not appear nor can it be in
ferred from anything in the evidence
that plaintiff is cut off from access to
the street, which circumstance, if it ap-
peared, under the decision in Hargo VS..
Hodgson. 80 Cal, 623. would make
case of special injury different from the
public generally, who suffer only from
the distractions in the highway-not
not from being cut off from access
thereto.
The action must, therefore, be dis
missed.