1. This is a plaintiff's appeal arising out of a suit for abatement of a public nuisance. The plaintiff owns a house numbered 151. The defendants Nos. 2 to 4 are the owners of a house numbered 143. Between these houses is a public thoroughfare, the exact width of which is not known. The defendants constructed a chabutra or platform on the public thoroughfare measuring six yards in length and 2 1/2 feet in breadth. The plaintiff complains in paragraph 3 of the plaint that 'owing to this improper act on the part of the defendants Nos. 2 to 4, the way has become narrow. The plaintiff's cart cannot be turned round after passing along it. On account of this the plaintiff's right of easement is much jeopardized. The plaintiff has to unload his cart at a distance and to turn it back'. No relief has been claimed against Town Area of Gunnore which ranks as defendant No. 1 in the present action.
2. There can be no doubt that a portion of the public thoroughfare has been encroached upon by the defendants Nos. 2 to 4. It is remarkable that the Town Area of Gunnore have taken no steps to have the obstruction removed. This case is illustra-tise of the general slackness of local bodies in the proper administration and control of public rights.
3. The defendants Nos. 2 to 4 contested the suit on the ground that the platform had been in existence for more than 20 years and that the plaintiff's suit was liable to dismissal because he had not suffered any special damage beyond what he did in common with all other members of the public affected by the nuisance.
4. The Court of first instance held that the platform had been recently built but dismissed the plaintiff's suit on the ground that he had failed to prove special damage. The lower Appellate Court affirmed the decree on the ground that the platform had not been recently built and that the plaintiff had failed to prove special damage.
5. Public nuisance is not by itself an actionable wrong but a public nuisance may under certain condition become a private wrong. A person founding a cause of action upon a public nuisance has to establish a particular injury to himself beyond what is suffered by the rest of the public.
6. The law has been correctly stated by the Court below but an error appears to have been committed in applying the law to the facts admitted or proved.
7. Where legal conclusions have been erroneously deduced from ascertained facts there is an error of law which can be challenged in second appeal.
8. The plaintiff's house admittedly adjoins a public highway. House No. 151 is his residential house. The plaintiff deals in grain and owns a shop which is located in a different building.
9. The learned Judge assumed that the plaintiff had no right to take his bullock cart to and from his residential house and opined that the plaintiff was not dandified by the construction of the offending chabutra even though it rendered it impossible for the plaintiff to turn a large cart round in the public thoroughfare in the space which was now left. 'He (the plaintiff; alleges that owing to the erection of the platform by the defendants Nos. 2 to 4 he is no longer able to turn a cart round, after it has unloaded at his house. It is admitted that at present the lane is only 8 feet 3 inches wide, and I am, therefore, prepared to accept that it Is impossible to turn the large cart round in the existing space'. The learned Judge misses the resultant finding that a special damage has accrued to the plaintiff from the act of the defendant and this clothes the plaintiff with a right of action.
10. Every citizen having a house abutting on or adjoining a public thoroughfare has the legal right to make a legitimate and reasonable user of the thoroughfare along its length and breadth for himself, his cattle or his conveyance leading from his door to any part of the highway. His right in this respect should be protected and enforced so long as it is not inconsistent with the right of other persons using the pathway for themselves for purposes of traffic. This right exists independently of prescription and is a sort of common law right. The law on this subject has been thus stated by Copnall (Highway Law, 1905 at page 38). 'An owner of land is entitled to enjoy all rights not inconsistent with the public right or passage along a highway and many premises could not be reasonably enjoyed without access to highway'. This view is amply supported by authority Marshall v. Ulleswater Steam Navigation Co. (1872) 7 Q.B. 166 : 41 L.J.Q.B. 41 : 25 L.T. 793 : 20 W.R. 144 and Hanuman Prasad v. Raghunath Prasad 82 Ind. Cas. 659 : 46 A. 573 : 22 A.L.J. 568 : A.I.R. 1924 All. 715 : L.R. 5 A. 393 Civil decided by Mears, C.J., and Piggott J. In St. Mary Norwington Vestry v. Jacobs (1872) 7 Q.B. 47 : 31 L.J.M.C. 72 : 25 L.T. 800 20 W.R. 249 it has been held that a frontager is entitled to open a driving way in his fence and drive his carriages over a pavement by the side of the road. An owner or occupier has a right of suit for damages against a person who obstructs or interferes with a right of access by an unreasonable user, Fritz v. Hobson (1880) 14 Ch.D. 542 : 49 L.J.Ch. 321 : 42 L.T. 225 : 28 W.R. 459 and the obstruction may be restrained by an injunction, Cook v. Bath Corporation (1868)6 Eq. 177. It follows as a corollary from the above that if the width of the thoroughfare has been encroached upon by the defendant resulting in the plaintiff not being able to utilise the highway in the same manner as he used to do before and the plaintiff cannot turn his cart round the road, on account of this obstruction, a special damage has arisen to the plaintiff and the matter is actionable.
11. The plaintiff not only pleaded special damage in his plaint (vide para. 3) but supported his plea by his sworn testimony and by other evidence. This evidence has not been discussed by either of the Courts below. I hold that the correct finding on the evidence is that special damage has been made out. I further hold that this finding is a legitimate inference from the facts ascertained by the Court below.
12. It has been contended by the learned Advocate for the respondent that the plaintiff is not entitled to succeed as the relief claimed by him is founded upon a stale cause of action. It may be conceded that the claim is one of the nature of a specific relief and may be dismissed upon the ground of delay or laches on the part of the plaintiff. The defendant pleaded that the chabutra had been constructed about 20 years before suit. The lower Appellate Court erred in putting the plaintiff to proof: about the age of the chabutra. It did not find categorically how old the chabutra was and contented itself with the vague and unsatisfactory finding that it was not recent. It is desirable to have a clear finding. The Court below is accordingly directed to determine the following issue upon the materials already on the record:
When was the chabutra built by the defendants Nos. 2 to 4 The Court below is requested to submit Its finding within two months of the receipt of the record. Upon return of the finding the usual ten days' time is allowed for objection.
13. The finding of the lower Appellate Court is that the chabutra was of two years' old at the time of the institution of the suit. The action is not a belated one. In view of the facts set out in my judgment, dated the 21st of January, 1929, the plaintiff is entitled to a decree. The plaintiff is entitled to relief A as set out in the plaint. I direct the removal of the chabutra within three months from to-day. It the defendants Nos. 2 to 4 fail to remove the chabutra within three months from to-day, the plaintiff will be entitled to have the chabutra demolished through the amin of the Court. The defendants are to pay the costs of the plaintiff throughout.