
    Rudolphus W. Anderson, App’lt, v. Benjamin Young, Resp’t
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 8, 1892.)
    
    Nuisance—Highways—Barbed wire fences.
    In an action to recover damages sustained by plaintiff’s horse being injured by coming in contact with a barbed wire fence built by defendant along the side of a highway, plaintiff claiming that the fence was a nuisance and within the limits of the highway, and defendant that the fence was proper and without the highway’s limit, the evidence as to whether the fence was within the bounds of the highway was conflicting, but there was no conflict as to the injury of the horse. At the conclusion of plaintiff’s evidence defendant moved for a non-suit, which was granted. Held, that if as a matter of fact the highway had been narrowed by the fence it would be a nuisance, and that, therefore, that question should have been left to the jury.
    Appeal from a judgment entered upon a non-suit granted by a justice at circuit.
    Action to recover damages sustained by plaintiff’s horse being injured by coming in contact with a barbed wire fence built by defendant along the side of a highway.
    
      Gordon H. Main, for app’lt; Badger & Ide (John P. Badger, of counsel), for resp’t
   Mayham, P. J.

The defendant constructed a barbed wire fence on or along the public highway, and while the plaintiff’s servant was leading two young horses attached together by one strap or halter, behind a buggy in which he was riding, they became frightened and ran against this fence, and one was seriously inj ured, for which this action was brought.

The complaint alleges that the defendant was the owner of certain premises and real estate therein described, along which for more than twenty years a public highway had been kept and used, which had been duly laid out as such and was four rods wide, and charged that the defendant had erected and maintained a nuisance in such highway in the construction of a barbed wire fence, by which the plaintiff’s horse was injured.

The answer denied that the fence was in the highway and alleges that the same was erected with the knowledge and consent of the plaintiff, and charges that the inj ury to plaintiff’s horse was the result of the negligence of the plaintiff’s servant.

On the trial the plaintiff put in evidence the records of an order made by two of the commissioners of highways of the town dated September 9, 1826, purporting to lay out this highway as of the width of four i ads.

This order was objected to by the defendant on the ground that it purported to have been made by two instead of three commissioners of highways of that town, and contained no recital or other evidence that notice of the meeting of the commissioners for the purpose of laying out this road was given to the third commissioner.

This objection was overruled and the order was read in evidence.

The plaintiff also put in evidence a warrant issued by the commissioners of highways of the town in which this highway was situate for the performance of work on the same.

The proof showed, or tended to show, that the plaintiff’s horse was injured by coming in contact with this fence while being led along this highway in a dark night.

The evidence as to whether this fence was within the bounds of this highway as the same' was fenced for many years was conflicting, there being some evidence tending to prove that it was, and some that it was on the line of the original fence. There was no conflict in the testimony as to the injury of the horse.

At the conclusion of the plaintiff’s evidence the defendant moved for a nonsuit and that the plaintiff’s complaint be dismissed on the grounds:

First That it appears from the evidence that the accident was caused by the negligence and careless manner in which plaintiff’s horse was held, and not caused by the fence at all.

Second. That the plaintiff has failed to prove the fact that the fence was in the highway, or if it was in the highway caused the injury, or that it would not have occurred if it had been several feet further back.

Third. That the plaintiff has failed to prove facts sufficient to constitute a cause of action. Plaintiff asked to have the case submitted to the jury for determination.

The court granted the motion, intimating that the action ought to have been one for negligence and that the plaintiff was guilty of contributory negligence, and for that reason ought not to go to the jury, and dismissed the plaintiff’s complaint, to which the plaintiff duly excepted.

In determining whether this non-suit was properly granted, we are to give full weight to all the evidence offered and received on the part of the plaintiff, and assume that, if the jury had found in accordance with it, the verdict, as matter of law, could not be upheld, Weaver v. White, 46 St. Rep., 467, and that the facts which the plaintiff’s evidence established or tended to establish were found in his favor.

The road in question, therefore, being conceded to be a public highway, there was some evidence on the part of the plaintiff that the wire fence was two feet farther in the highway than the old fence which had enclosed the highway for more than twenty years before the erection of the wire fence, and this evidence on the question of non-suit must be construed in the most favorable light for the plaintiff.

If, therefore, we should adopt the contention of the defendant, that the order of the commissioners laying out this road was void, for the reason that it does not appear that the third commissioner was notified of the meeting of the commissioners to make the same; still we would have a public highway by user and adoption by the commissioners and worked by them as such, to the extent . of the user indicated by the location of the old fence, as the same was proved by the plaintiff to have existed for twenty years, and as to which the wire fence was an encroachment, and the questxm whether that encroachment was a nuisance from which the plaintiff’s horse was injured was, we think, one for the jury, and the refusal of the learned judge to send it to the jury was error.

One of the important questions for consideration in this action was whether this highway had been narrowed or contracted by the erection of this fence, and that xvas for the jury upon the evidence to determine as a question of fact.

If, as a matter of fact, the road had been contracted or narrowed, the law would adjudge to be a nuisance. In President, etc., of Whitehall Turnpike v. People, 9 Barb., 175, the court says: “To constitute a nuisance it is not essential that the road should be unsafe or impassable; any contracting of a highway is a nuisance. 1 Russ, on Crimes, 305.”

Any obstruction left in the road, or omission to repair it, whereby it is less convenient for public use, falls within the same category.

It is true that while an encroachment upon a highway is a nuisance, it is not in all cases such a public nuisance as will justify its removal by any individual, as the statute has provided a method by which such encroachments may be determined summarily and removed by the highway commissioners, but' if the encroachment be in fact a nuisance by which a party is injured, he may maintain, an action for such injury. 37 Barb., 301. In Osborn v. Union Ferry Co., 53 Barb., 629, it was held that the public being entitled to the use of the highway, whoever, without special authority, obstructs it or renders its use hazardous by doing anything upon, above or below the surface, is guilty of a nuisance, and one sustaining special damage from it, without any want of due care to avoid injury, has a remedy against the person continuing the nuisance. See also, 107 N. Y., 360; 12 St. Rep., 21; ' 103 N. Y., 77-83; 3 St. Eep., 69.

Having reached a conclusion that this case should have been submitted to the j ury, it is unnecessary to examine the numerous other questions raised on this appeal.

There must be a new trial of the action, costs to abide the event.

Judgment reversed and new trial granted, costs to abide the event.

Putnam and Herrick, JJ., concur.  