Graves v. Shattuck

Fowler, J. *

As the defendants have not furnished, in brief or argument, any specification or suggestion in what particulars or for what reasons the instructions of the court below were regarded as erroneous, we have carefully examined and considered them, but have been unable to discover any thing therein of which the defendants have just cause to complain.

That the jury must determine, from all the circumstances of each particular case, whether any object permanently placed, *265 temporarily left, or slowly moving in a public highway, was or was not a common nuisance, is too well settled by authority, and too clear, upon well established principles, to admit of doubt; and it is equally well settled and equally clear that, at common law, this determination must depend upon their finding of the fact, whether the given object, under all the circumstances accompanying its occupation of the highway, did or did not unnecessarily obstruct the free passage of the public over and upon such highway. Hopkins v.1 Crombie, 4 N. H. 525, and authorities there cited.

The first and principal design of highways is the accommodation of the public travel, and cities and towns are required by statute to construct and maintain them in suitable condition for that purpose ; but they may lawfully be used for other purposes, provided such use be not inconsistent and incompatible with the reasonably free passage over them of whoever has occasion to travel upon them. They are designed and constructed for the general convenience of mankind, to be used for all those purposes to which from the earliest period of their construction they have been accustomed to be appropriated, and it cannot be a nuisance for any one to use them as they have been ordinarily used. Yery much depends upon locality, the width of the highway and the time it may be obstructed by the alleged nuisance. What would be a reasonably free passage for the public — what would be a reasonably safe and convenient road for the accommodation of the public travel in a remote, sparsely populated, rural district, might and generally would not be so in a compact city, or a large and populous village. So, too, in a village or city, what would be no obstruction in a broad street, little frequented, might be very objectionable, if not an absolute nuisance, in a narrow business thoroughfare.

If public highways in Nashua and similar localities had been commonly used for the purpose of moving buildings, the plaintiff was guilty of no nuisance in moving his building through them, provided he selected suitable streets, used proper expedition, and was in the reasonable use of such streets, under all the circum *266 stances shown in evidence, causing no unnecessary obstruction therein; and this whole question was properly submitted to the jury, and their verdict settles it conclusively in favor of the plaintiff.

In the Attorney General v. The Sheffield Gas Consumer’s Co., 19 Eng. Law & Equity 639, which was an information and bill, ashing for an injunction to prevent the defendants, who were a joint stock company, without any special act of incorporation or authority, to lay their pipes in the public highways or streets, from laying gas pipes in the streets or highways of the borough of Sheffield, and from breaking up or disturbing for that purpose the road or pavement of said streets or highways, or doing any other act whereby the passage of Her Majesty’s subjects along said streets should be obstructed or rendered less safe or convenient, on the ground that such breaking up of the streets and highways would be a public injury, amounting to a public nuisance, the injunction was refused and the bill and information dismissed. In the course of the opinion of the court announcing this result, the Lord Chancellor remarked:

“ I must say that when the cause was argued in August last, and I myself said we did not want any court of law to tell us that the tearing up of the pavement was a nuisance, I did not advert to the particular circumstance or act contemplated by these defendants, but merely to the general proposition ; and I cannot now say that it appears to me absolutely impossible to be held that the taking up of the pavement for such a purpose as this is a nuisance. I do not say how the matter may be, but it may be held to be analogous to this sort of thing: If I were to station a cart in the street opposite my door, obstructing the public highway, I might be guilty of a nuisance, for aught I know, and I might be liable to be indicted; but it would be a sufficient answer to say, that the cart was there only a reasonable time and for a lawful purpose. If it is used in the way in which such things are ordinarily used, it cannot be a nuisance so to use it. The public highway is for the convenience of mankind, and so to use'it cannot be a nuisance.- One of the uses is, that a person *267 travelling with, a cart or carriage may draw up at a particular door, and get down, according to Ms lawful occupation. So, again, if I have a cart come to my house with five or six tons of coals, of course it will be some time obstructing the public highway ; but it is difficult to maintain that, in an ordinary street, that would be a nuisance. All these cases of nuisance or no nuisance, arising from particular acts, must, from the nature of things, be governed by particular circumstances.” “ You must be guided by particular circumstances; you must look at the particular place or object the parties have in view. I take it that all these questions are of this nature : Are you using the subject matter of injury in a reasonable way, and are those the uses for which it was contemplated ? It may be that tearing up the pavement is not, even for the purpose of laying down gas pipes, anything that was ever in contemplation, and that it cannot be done without the authority of the legislature, or some other competent authority.”

In Commonwealth v. Passmore, 1 Serg. & Rawle 219 , where the defendant was indicted for a nuisance in placing goods on the foot-way and carriage-way of one of the public streets of Philadelphia, and suffering them to remain there for the purpose of being sold at auction, Chief Justice TUghman said:

a It is true that necessity justifies actions which would otherwise be nuisances. It is true, also, that this necessity need not be absolute; it is enough that it be reasonable. No man has a right to throw wood or stones into the street at his pleasure. But, inasmuch as fuel is necessary, a man may throw wood into the street for the purpose of having it carried to his house, and it may lie there a reasonable time. So, because building is necessary, stone, bricks, lime, sand and other materials may be placed in the street, provided it be done in the most convenient manner. On the same principle, a merchant may have his goods placed in the street, for the purpose of removing them to his store in a reasonable time. But he has no right to keep them in the street for the purpose of selling them there, because there is no necessity for it.”

*268 A similar doctrine is recognized in Rex v. Russell, 6 East 427, and in People v. Cunningham et al., 1 Denio 524 .

In the King v. Jones, 3 Campbell 230, where the defendant was indicted for obstructing a highway by depositing long pieces of timber in the street, and keeping them there until they were sawed up, because his yard was not large enough to receive them entire, Lord Klleriborough remarked:

“ If an unreasonable time is occupied in the operation of delivering beer from a brewer’s dray into the cellar of a publican, this is certainly a nuisance. A cart or wagon may be unloaded at a gateway, but this must be done with promptness. So as to the repairing of a house ; the public must submit to the inconvenience necessarily occasioned in repairing the house; but if this inconvenience be prolonged for an unreasonable time, the public have a right to complain, and the party may be indicted for a nuisance.”

Indeed, the doctrine of all the cases on this subject that we have examined, seems to be in accordance with the instructions of the court below, that the law justifies obstructions of a partial and temporary character, from the necessity of the case and for the convenience of mankind, when those obstructions occur in the customary or contemplated use of the highway, and that the question of their necessity and reasonableness, and of the customary or contemplated use, is one for the consideration and determination of the jury, under all the circumstances of each particular case.

Nor have the defendants any reason to object to the instructions of the court in regard to the justification by the defendants, whether, as citizens, or as owners, in defence of their property imperiled, or supposed to be endangered by the plaintiff’s building. In assuming that building to be a nuisance, as it was situated in the highway, and undertaking to abate it as such by foi’ce, the defendants took the risk of being deemed trespassers, if they should fail to establish the existence of the nuisance, or, having established it, should be found to have employed unreasonable and unnecessary force and unwarrantable means for *269 its removal; and on both these points the verdict of the jury, under the instructions given, is conclusive against them.

Any person may abate a common nuisance. Viner’s Abr., Nuisance, T., pl. 3, and W., pl. 4; Bacon’s Abr., Nuisance, C; Comyn’s Dig., Case for Nuisance, D. 4; 3 Black. Com. 5, 7; James v. Hayward, Cro. Charles 184; Houghton v. Butler et al., 4 D. & E. 364. But he does so under the peril of being deemed a trespasser, unless the existence of the nuisance is established. Wetmore v. Tracy, 14 Wendell 255 .

If the defendants’ shade trees, their own private property, wei'e imperiled by the plaintiff’s building, they had a right to use whatever force was necessary to defend and protect that property from injury. If they proceeded beyond that, they became trespassers, and were liable for any excess of force employed by them. But the mere fact that the building -was in the street, and approaching the private property of the defendants in a way that might be likely to endanger it, would not justify them in destroying the building. They could not lawfully interfere with it, unless it were a common nuisance, or actually endangering their property at the time. Where there is time and opportunity for the interposition of a legal remedy, by process which is adequate, and may be effectual to prevent the probable injury to property, the law will not justify the summary employment of force. The danger must be imminent to authorize private individuals to take the execution of the law into their own hands.

Brooks v. Hart, 14 N. H. 307, conclusively settles the correctness of the instructions as to the non-applieation of the law of the road to the case of a moving building. By that decision, the law referred to is expressly limited to the regulation of the conduct and rights of travellers with vehicles at the time and place of meeting, and while passing each other. The doctrine of that decision was reaffirmed in Norris v. Litchfield, 35 N. H. 271.

The powers and duties of towns, and their liabilities in relation to the construction and repair of highways, and the rights of adjoining land-owners, are so well understood, and have so *270 recently been considered and discussed, in the cases of Hubbard v. Concord, 35 N. H. 52, and Johnson v. Haverhill, 35 N. H. 74; and in Baker v. Shepard, 4 Foster 208 , and Blake v. Rich, decided in Coös, July term, 1856, that it is hardly necessary or useful again to consider them. It is sufficient to say that the instructions on these points seem to have been in strict accordance with the well settled law of this State. Copp v. Neal, 7 N. H. 276, and authorities there cited.

It seems entirely clear that the interest of the public in a highway consists solely in the easement or right of passage, with the right to construct and repair, while the general, primd facie presumption of law is, that the freehold of the road, usque ad medium filum vice, is in the proprietors of the land on either side thereof; that towns are not bound to grade the entire width of their common highways; that in cities and villages they may reasonably accommodate and protect foot passengers by sidewalks, curb-stones, posts and railings, and so exclude carriages from a part of the way, leaving them a reasonably safe and convenient passage; that such curb-stones, posts and railings, properly constructed, are in no sense nuisances; that where side-walks are thus reasonably and properly set apart, the owners of the soil may lawfully use the dividing space between the carriage path and side-walks, for the growth of trees for ornament or use, and trees thus situated are in no sense nuisances, but specially protected from injury by statute (Comp. Stat., ch. 560, sec. 19;) that such trees are presumptively the private property of the adjacent land-owner, and whoever injures them is presumptively a trespasser against such owner; that trees thus situated and owned may lawfully be forcibly protected by their owners against an impending injury; and that if the plaintiff’s building were of such a size, or moved in such a manner as to injure or unreasonably endanger trees thus growing, their owners would be justified in employing against it sufficient force to protect the trees from actual or threatened injury.

The remarks of the court below as to the wanton and ruthless destruction of useful or ornamental shade trees, by forcing *271 through a street a building occupying its whole width, thereby destroying in a single day the combined efforts of man and nature for half a century, were strong and emphatic, but not more so than the aggravated nature of the supposed desolation would seem to demand and justify. At all events, the defendants cannot, and the plaintiff does not, complain of them.

It is, however, entirely unnecessary to reaffirm, in detail, the instructions of the court below. We see in none of them any thing objectionable as matter of law, or in any way prejudicial to the legal rights of the defendants, against whom a verdict was returned upon every count of the declaration, as well as generally. There must, therefore, be Judgment upon the verdict.

Peeley, C. J., and Sawyer, J., having been of counsel, did not sit in this case.