
    (25 Misc. Rep. 110.)
    TOWN OF CLAY v. HART.
    (Onondaga County Court.
    October, 1898.)
    1. Appeal—Presumptions—Highway Commissioners.
    Under Highway Law, § 15, authorizing the commissioner of highways to sue in the name of the town to recover damages sustained through violation of any law or any contract relating to a highway, the appellate court will not presume that an action in justice’s court in the name of the town against a private individual to recover the cost of repairing a highway was not brought by such commissioner in behalf of the town where the commissioner of highways, who had previously brought an action before the same justice, and for the same cause of action, and whose duty it was to bring such actions, was a witness on the trial.
    2 Highways—Estoppel.
    The fact that a highway commissioner whose duty it was to bring an action to recover the cost of repairing a highway by mistake brought it in his own name as such official does not bar or estop him to thereafter bring the action in the name of the town.
    3. Res Judicata.
    An action by a commissioner of highways in his own name as such to recover for failure to repair a highway, and an action for the same subject-matter in the name of the town, is neither by the same parties plaintiff nor by parties in privity of estate, and hence a judgment in the former does not bar the latter suit.
    4 Covenants Running with Land.
    There is no covenant running with the land to repair a highway over a mill race appurtenant to the lands, and running across an adjoining highway.
    5. Highways—Rights of Abutting Owners.
    The owner of the fee of a public highway may sink a water course under it for use in connection with his adjoining premises, where the highway is not thereby rendered unsafe.
    
      6. Nuisance—What Constitutes.
    It is a nuisance for the owner of a mill property and a race way connected therewith, which runs across a highway, to permit a highway bridge over such race way to remain out of repair; and the town may abate such nuisance by repairing the bridge, and charging the cost thereof to such owner.
    7. Same—Abatement by Town.
    Where an unsafe bridge on a public highway has become a public nuisance, it is the duty of the town commissioner of highways and of the overseer of highways to repair the highway under Highway Law, §§ 4, 16, 20, subd. 1, making it their duty to keep highways in repair and providing that the town is liable for damages from a defective highway.
    8. Towns—Repair op Bridge—Recovery op Cost.
    A town which has repaired a defective bridge, which a third person was bound to keep in repair, is not precluded from recovering the cost of such repairs from him by the fact that it may have other remedies.
    9. Bridges—Duty to Repair.
    Where a mill race was dug through a highway, and a bridge built over it, there being no necessity for the bridge but for such mill race, the owner of the race, who received the benefit therefrom, was primarily liable to keep the bridge in repair.
    Appeal from justice court.
    Action by the town of Clay against Adoniram Hart in justice’s court to recover the cost of repairing a bridge on a public highway across a mill race owned and used by defendant. There was a judgment for plaintiff, and defendant appeals.
    Affirmed.
    The race in question was dug through the highway, and a bridge erected thereover, by defendant’s predecessor. Defendant purchased the land knowing that the race was appurtenant thereto, but testified that he did not know whether it was an artificial or natural channel, but knew some time prior to the building of the race that it was not there.
    An action commenced against defendant, in the same justice’s court by “Eugene Delong, as commissioner of highways of the town of Olay,” in which judgment was rendered for defendant, was urged in bar of this action, and it was further contended that this action was brought on the suggestion of the supervisor, and not the highway commissioner, and hence was not properly brought
    Francis David, for appellant.
    J. R. Shea, for respondent.
   ROSS, J.

1. Action Properly Brought. It appears from the justice’s minutes that the supervisor appeared for the town upon the adjourned day. Such appearance was unnecessary, as the plaintiff appeared by his counsel, J. R. Shea, both at the time of joining issue and also upon the adjourned day. The counsel upon each occasion swore to his authority. Section 15 of the highway law provides that:

“The commissioners of highways may bring an action in the name of the town, against any person, * * * to enforce the performance of any duty enjoined upon any person, * * * and to recover any- damages sustained * * * by such town, in consequence of any act or omission of any such person * * * in violation of any law or contract in relation to such highway.” People v. Dettmer, 26 App. Div. 328, 49 N. Y. Supp. 877.

Eugene Delong, the commissioner of highways of the town of Clay, was sworn as a witness upon the trial of this action. He had previously brought an action in his own name as commissioner of highways before the same justice, and against the same defendant, in which he alleged substantially the same facts as alleged in the complaint in this action. In the first action he was unsuccessful. This action being properly brought in the name of the town, an appellate court will not presume, in view of the foregoing facts, that the commissioner of highways of the town of Clay did not bring this action; especially in view of the fact that the bringing of such a suit, if a cause of action exist, pertained to the duties of his office.

3. Former Action not a Bar. The judgment in the action of Eugene Delong, as commissioner of highways of the town of Clay, against the defendant, is not a bar to this action. A judgment for want of proper parties is not a judgment on the merits. Freem. Judgm. §§ 263, 266. The section last quoted is as follows:

“The third subdivision [where the proper parties are not before the court] is applicable to cases in which the want of proper parties, either plaintiff or defendant, is apparent from an inspection of the record; and also to cases where, though the proper parties apparently come before the court, one or more of them has no capacity to sue.”

Neither is a misconceived action a bar. The mistaking of his action by a plaintiff is not a bar nor estoppel to bring his true action. Freem. Judgm. § 265; Robinson’s Case, 5 Coke, 33a. Mr. Freeman, in section 265, uses the following language:

“The exception which takes these cases [where the action is misconceived] out of the general rules in relation to estoppel is a very important one, saving the plaintiff from the loss of his claim through any error of judgment on the part of his attorney In determining what form of action is best suited for the enforcement of the plaintiff’s rights.”

But, further, the parties are not the same. “It is just as important that the parties to both suits should be acting in the same capacity in each as that the parties should be the same.” 21 Am. & Eng. Enc. Law, 136; Duchess of Kingston’s Case [1776] 3 Smith, Lead. Cas. 1998; Metters v. Brown, 1 Hurl. & C. 686; Leggott v. Railroad Co., 1 Q. B. Div. 599; Eshelman v. Shuman, 13 Pa. St. 561; Alexander v. Taylor, 4 Denio, 302; Freem. Judgm. § 156. In the case of Alexander v. Taylor it was held that:

“Where the defendant in an action of trover had recovered judgment in replevin for the same property against J. W. S., who was in the employment of the plaintiff in the first-mentioned suit, and who set up in his defense that the property belonged to his employer, and that he took it as his servant and agent, the record of the .former recovery was not admissible in the action of trover.”

In the case of Eshelman v. Shuman it was held that a suit by the president of the orphans’ court for the use of the assignee of the husband for an amount of the share of the wife is no bar to recovery in the name of the same officer for the use of the wife and her husband as her trustee.

For the foregoing reasons no question of privity of estate (which was argued by the attorney for the appellant) can arise. E the party would not be bound, those in privity of estate with him are not bound; but there is no privity of estate between Eugene Delong, as commissioner of highways of the town of Clay, and the town of Clay. The' first action brought by Eugene Delong being unauthorized, there was no estate to devolve.

3. Eights and Obligations of the Defendant in Eespect to the Highway. The plaintiff being properly in court, and it being held that the former action referred to is not a bar to this, the principal question is, has the defendant omitted any duty, or violated any contractual obligation, actual or implied, which he owes to the plaintiff ? It does not appear from the evidence whether the water course across the highway is now necessary, but from the fact that a bridge is necessary, and the water course still remains, it must be assumed that the water course across the highway still continues for the benefit of the owner. The town cannot recover as upon a covenant running with .the land, for there is no covenant; and, if a recovery can be had upon a right by prescription, which is doubtful, it would not be a personal obligation of a subsequent grantee; but such a servitude could only be enforced against the land. Manufacturing Co. v. Staples, 164 Mass. 319, 41 N. E. 441. The public acquired an easement in the highway which the owner of the land could not interrupt; and the title to the soil remained in the owner, and he has the right to every use to which the land can be applied,, subject to the easement of the public. He had the right to sink a water course under the highway upon his own land for the use of his mill, but he must take care that the highway remains safe for travelers thereon. Perley v. Chandler, 6 Mass. 453; Woodring v. Forks Tp., 28 Pa. St. 355; Heacock v. Sherman, 14 Wend. 59; Dygert v. Schenck, 23 Wend. 446; Washb. Easem. *197; Briggs v. Railroad Co., 30 Hun, 295; Coatsworth v. Railway Co., 156 N. Y. 457, 51 N. E. 301.

4. Nuisance. The recovery in this case can, as it seems to me, be upheld upon the ground that it was a nuisance for the defendant to maintain a stream across the highway without protecting the public, and that the obligation to protect the public rests primarily upon the defendant, and secondarily upon the town; and that the latter, in consequence of such liability, has a right to abate the nuisance,—that is, to repair the bridge,—and charge the same to the owner of the premises. Any act of an individual done to a highway, although performed upon his own soil, if it detracts from the safety of travelers, is a nuisance. Dygert v. Schenck, 23 Wend. 447; and cases there cited. A continuous act or omission, which renders a public highway unsafe, is probably a nuisance per se. 16 Am. & Eng. Enc. Law, 937.

5. Eight to Abate a Nuisance. While it is true that the right to abate a public nuisance only lies with those who sustain a special injury, and in the case of a municipal corporation it can do nothing beyond the powers granted by the legislature, it is, however, made the duty of the commissioners of highways of towns to cause the highways and bridges therein to be kept in repair (Highway Law, § 4), and also is the duty of the overseer of highways to repair and keep in order the highways within his district (Id. § 20, subd. 1), and the town is made liable for defective highways (Id. § 16). So that it became the duty of the commissioner of the highways of the town of Clay, and also of the overseer of highways, to abate the nuisance of an unsafe bridge by putting the same in a proper state of repair. The fact that other remedies may exist does not preclude the public from bringing an action against the party liable to make the repairs. Woodring v. Forks Tp., 28 Pa. St. 355. Where, in a given state of facts, the law raises a legal obligation to do a particular act, and there is a breach of that duty, and a consequent damage, assumpsit may be maintained upon a promise liable by law to do the act. 1 Chit. Pl. 155.

6. Primary Duty to Repair. I think that the primary liability to repair rested upon the defendant, the owner and occupier of the premises through which the water course ran, and who received the benefits therefrom. As stated in the case of Rex v. Inhabitants of Lindsey, 14 East, 317, by Grose, J.:

“The defendants cannot be liable to repair a bridge erected and continued for the private benefit of the company, for without the cut made by the company for their own benefit there would be no necessity for the bridge.”

It was stated by Mr. Justice Huger in the case of City of Rochester v. Campbell, 123 N. Y. 411, 25 N. E. 937

“As being too well settled to require argument * * * if a municipal corporation has been compelled to pay a demand for damages recovered by a traveler for injuries sustained from a defect or obstruction in one of its highways, which defect or obstruction was created by the -willful act or negligence of a third person, it may maintain an action against such third person for reimbursement, and the rule is the same when it has paid an undoubted liability without suit. * * * So, also,' if the municipality has provided by contract with third persons for keeping its street in repair, and has been, through a neglect by such party to perform his contract, subjected to damages at the suit of an injured party, it may recover from such party the sum which it has thus been compelled to pay.”

In this state in this class of actions the term “primary liability” has, as it seems to me, been frequently used carelessly. In the case of City of Rochester v. Montgomery, 72 N. Y. 67, Rapallo, J., uses the following language:

“If the defendant unlawfully placed an obstruction in the street, or left it negligently without guards or lights, and McNeiss was injured in consequence, the plaintiff, although primarily liable to McNeiss, had recourse over against the defendant for the amount recovered by McNeiss, by reason of the defendant’s unlawful or negligent act.”

This can only mean that McNeiss, the party injured, could first sue the city; for, if the primary liability rested upon the city, how could it maintain an action against one only secondarily liable?

In the case of City of Cohoes v. Morrison, 42 Hun, 216, affirmed in the court of appeals without opinion, 116 N. Y. 662, 22 N. E. 1134, the court said (page 218, Landon, J.):

“Sewell [the party who had recovered against the city] only sought recovery from the city, and it was not needful for him to establish that the defendant was the primary author of the act which injured him.”

In the Campbell Case (page 413, 123 N. Y., and page 938, 25 N. E.), Mr. Justice Huger uses the following language:

“In these cases [actions by municipal corporations against wrongdoers for damages which they have been compelled to pay individuals injured through defects or obstructions in highways] the primary liability rested upon those who created the dangerous condition through which injury resulted, and, the municipality having been forced to pay such damages to one injured, it became subrogated to the remedies óf the party -whose damages had been satisfied.”

It would seem clear, from the language of the court in the Morrison and Campbell Cases, and upon principle, that the primary duty rests, in this class of cases, upon the individual who either by a violation of a statutory or contractual duty or by acts or omissions has caused the injury to the third person. In other words, the words “primary liability” mean, not the person whom the third party can first sue, but the party ultimately liable,—the party who must finally respond in damages for his wrongful or unlawful act.

For the foregoing reasons it seems to me that the acts of the defendant in continuing the water course across the public highway without adequately protecting the public created a nuisance, and that the statutory provisions in relation to the duties of the commissioner and overseer of highways of towns gave those officials the right, and made it their duty, in the performance of the affirmative obligation to the public, to repair and abate such nuisance, and that the duly to maintain this water course in such a manner that it should not become a nuisance rested primarily upon the defendant. The evidence upon the subject of the value of the repairs is rather meager. Eugene Delong, upon the subject, testified:

“I made repairs upon the bridge after I served a notice on defendant. I had the old plank taken off, and a new plank put on It. The bill for doing it amounted to $31.70. I presented the bill to Hart, and asked him to pay it. Defendant said he wanted a few days to look it up.”

As the defendant did not object to the amount of the bill when presented to him, did not object to the foregoing evidence upon the subject of the value of the repairs upon the trial, did not claim upon the motion made for a nonsuit that the value of the repairs was not properly proven, and did not raise objection upon this appeal, the evidence will be deemed sufficient.

Judgment affirmed, with costs.  