Lampa v. Graham , 179 Wash. 184 ( 1934 )

I dissent. There is no distinction between this case and that of Morris v. Graham, 16 Wn. 343, 47 P. 752, 58 Am. St. 33; nor in the principles applied in Anderson v. Nichols, referred to in the majority opinion.

In this case, as in the Morris case, the action was instituted and a decree rendered in behalf of a class as to which the injury complained of is not common to the general public, but peculiarly affects respondent and the class to which he belongs. The acts complained of and enjoined by the trial court constitute a damage and special injury to them in which the general public does not and cannot share. The fact that others would suffer in the same way, if they were similarly engaged, constitutes no bar to the maintenance of the present action. It has always been held in this and every court of last resort of any repute that every individual who receives actual damage from a nuisance may maintain a private suit for his own injury, although there may be many others in the same situation.

Respondent and those similarly situated for whom he is suing are denied the benefits of Rem. Rev. Stat., § 9921 [P.C. § 9131-75], quoted in the prevailing opinion.

The judgment should be affirmed.

GERAGHTY, J., concurs with HOLCOMB, J.