
    Herbert F. Lawton, Appellant, v. John W. Olmstead, Respondent.
    
      ITuisance — logs piled near a higlmay by one contracting, for their transportation — liability of the owner, after he knows of their situation, for an injury occasioned by a log rolling upon the traveled track.
    
    Logs piled in a public highway so near the.traveled track that if one rolled off it would cross such track, constitute a public nuisance.
    Where such logs have been piled in the highway by a person having a contract with the owner to haul them to a certain place, the latter is bound, as between himself and the public, to remove them within a reasonable time after acquiring knowledge of the dangerous situation in which they have been placed: and his failure to remove them for a period of five days after acquiring such knowledge, constitutes an unreasonable delay, as matter of law, and renders him liable for an injury to a wagon resulting from its running against a log which had rolled from the pile..
    Putnam, J., dissented.
    Appeal by the plaintiff, Herbert F. Lawton, from a judgment of the County Court of -Saratoga county in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 26th day of July, 1897, reversing a judgment in favor of the plaintiff rendered by a justice of the peace, and also from an order made by the County Court of Saratoga county upon which such judgment was entered.
    
      The above action was brought in a Justice’s Court to recover damages against the defendant for an injury caused to plaintiff’s wagon by running against a log, which had rolled from a pile of logs belonging to defendant, and which had been left in the highway during the spring and summer of 1896. The justice rendered judgment for the plaintiff. The County Court, upon appeal, reversed such judgment, and from such judgment of reversal the plaintiff appealed to this court.
    
      Horace E. McKnight and R. P. Anibal, for the appellant.
    
      John H. Burke, for the respondent.
   Parker, P. J.:

Prom the undisputed evidence in this case, I think we must .assume the following facts:

That the logs piled in the highway but a few feet from the traveled track were a public nuisance.

That, although they were placed there by Whitaker without the •defendant’s knowledge, and under a contract which gave Whitaker the sole control of them until delivered at the mill or river bank, yet the defendant learned as early as the Sunday before the Friday on which the injury was sustained, that they were his logs, left there by Whitaker while performing such contract. Also, that he, defendant, at that time refused to give twenty-five cents “ a market ” to have them hauled over to Sumner’s mill, and neglected to have them removed at all during the five days intervening before the injury.

The question is, therefore, presented, whether such facts, as matter of law, show a liability upon the defendant’s part for the damages which the plaintiff sustained. If they do not, the plain error committed by the justice in excluding Whitaker’s evidence as to what the contract was between the defendant and himself, required •a reversal of the justice’s judgment. But if such liability, upon ■those conceded facts, follows as a matter of law, then such error was a harmless one and the judgment of the justice was correct.

After some doubt, I reach the conclusion that such facts establish, as matter of law, a liability against the defendant. On the Sunday in question, the logs thus piled in the public highway, and so near that if one rolled off it would cross the traveled track, were undoubtedly a public nuisance. (Cohen v. Mayor, etc., of N. Y., 113 N. Y. 535, 537.) Concede that up to that time defendant had no part in creating that nuisance, yet from that date his logs, to his knowledge, were stored in a place where it was unlawful to pile them and where they created a public nuisance. And such nuisance was of such a character as was liable to cause special injury to the traveler who passed them. It seérns clear that, as between the public and the defendant, it was his duty to remove that nuisance.

As against Whitaker, he might demand that he complete the contract by hauling the logs to the place of delivery, and he might abandon them to. Whitaker until lie, .did so. But I cannot see how Whitaker’s neglect justified the defendant in permitting his property to remain an obstruction and a nuisance in the public way. Undoubtedly, the defendant had the right to take them out of the highway. Whitaker, for six months or more, had abandoned them,, and as they there lay they were the defendant’s property under his-full control.

Undoubtedly he had a reasonable time to remove them after discovering that they were his; but, being his property, it was his duty to see that they did not remain a nuisance. He had no more right to adopt Whitaker’s plan of utilizing the highway as a dumping ground than he had to place them there in the first instance. By omitting to remove them within a reasonable time he continued the nuisance and is responsible to any one suffering special damage from the same. In Northrop v. Burrows (10 Abb. Pr. 365) it is held that if one who was compelled to leave a load of wood in the highway because of the breaking of his wagon, leave it there an unreasonable length of time it becomes a nuisance and may be abated.

My doubt has arisen as to whether the question of reasonable time was not a question of fact to be passed upon by the justice before whom the case was tried. We cannot assume that he passed upon that question against defendant, because it may be that he considered Whitaker as the defendant’s servant, and, therefore, held him liable-as having created rather than having continued the nuisance. But the omission for five days, unexplained, to remove a pile of ten logs from the highway seems so clearly an unreasonable delay that I am of the opinion that, upon the facts as presented to him, the justice would not have been warranted in holding any other way. Therefore, I conclude that upon appeal from his judgment such delay should be held unreasonable as matter of law.

Upon this view of the case the justice was right in holding the defendant liable.

As to the amount of damages, although they seem large, I see no good ground for an appellate court’s interfering'with the conclusion of the justice thereon.

All concurred, except Putnam, J"., dissenting.

Judgment of the County Court reversed and that of the justice affirmed, with costs to the plaintiff in this court and in the court below.  