
    Emanuel Phifer v. John Cox.
    1. By the lawful establishment of a public road the public acquires a mere easement or right of way on the land over which it passes, with the powers and privileges incident to that right; but the owner of the fee retains the exclusive right to the trees, shrubs and herbage growing on the land, for all purposes not incompatible with the right of way, and he may maintain an action in respect to them, when not taken for the purpose of making or repairing the road, or lawfully abated as a hindrance or annoyance to travelers thereon.
    3. The mere fact that such trees, shrubs or herbage stand within the bounds of the road, does not justify any individual, not acting under official authority, in destroying them; but if they are a ‘hindrance or annoyance to travelers they are a public nuisance, and may be abated or removed in a peaceable manner by any one lawfully using the road. Whether they are such nuisance is a question of fact for the jury; and such summary abatement cannot be justified unless the public travel is thereby impeded, hindered or annoyed.
    3. Where a growing hedge, standing within the bounds of a highway, but leaving ample room for the public travel, which was not thereby incommoded or annoyed, was cut down by an individual not acting under official authority — -held, that the hedge was not such a nuisance as would justify any person in abating it, and that the owner of the fee might maintain at action for his damages sustained thereby.
    
      Error to the court of common pleas of Hancock county. Reserved in the district court.
    The original action came to the court of common pleas of Hancock county, by appeal from the judgment of a justice of the peace, and was brought by John Cox, the plaintiff, against Emanuel Phifer, the defendant, for wrongfully •cutting down one rod of hedge-fence growing on the premises of the plaintiff.
    The defense was that the hedge was growing in a public highway, to the injury and hindrance of the defendant and •other good citizens in their lawful use of the highway, for which reason he cut it down, doing no other injury to the plaintiff.
    The plaintiff replied, denying that the hedge was an obstruction to the highway, or that it was a hindrance or inconvenience to travelers on the highway.
    On the trial it appeared that the defendant cut about one •rod of the hedge-fence of the plaintiff, in August, 1866 ; that about eighteen years before, it was planted for a fence by the grantor of the plaintiff; that a county road was established along the line of the fence, forty feet wide, leaving the fence about ten feet west of the east line of the road; that on the remaining thirty feet the road was opened and used ns a highway, leaving the hedge undisturbed. The plaintiff gave much evidence tending to show that the road along the hedge was as good and convenient for travelers as any part of the highway, and that neither the defendant nor the ■traveling public were incommoded by the hedge, and that for that reason the supervisor refused to cut it down, as requested by the defendant. The defendant gave evidence tending to prove that the fence was a hindrance to travelers.
    The jury returned a verdict for the plaintiff. Thereupon the defendant moved for a new trial, on the ground that the verdict was against the evidence, and that the court erred in its charge to the jury, and in refusing to charge as requested by the defendant. The court overruled the motion, •and entered judgment on the verdict. A bill of exceptions was taken, setting forth the evidence and the charge of the court, and exceptions to the charge and rulings of the court.
    After making some introductory remarks in relation to the duties of commissioners and supervisors in establishing and opening roads, the court charged the jury as follows :
    . “ Whilst the supervisor might at any time have caused and directed the road to be opened its extreme width, yet he was not bound to open the same wider than the convenience of the public in fact required. The trees growing, and the fences constructed upon the ground allowed to be opened for public use as a highway, remain the property of the owner of the fee, and if they existed within the limits of the new road at the time of its establishment, the owner is under no special obligation to remove the same ; nor will the sufferance of their continuance make them a nuisance, so as to authorize a private person, unauthorized by the supervisor, to remove the same, unless they in fact subject him to a substantial axxd material hindrance axxd incoixveniexxce in the exercise of his right, in common' with other citizens, to the use of the road as a public highway.' An authorized road once opened, or, in tact, xxsed by the public as a highway, becoming obstructed so as to work a positive inconvenience or damage to a citizen in its proper use, such obstruction may be summarily removed with impunity by the act of such citizen.
    “If the jury shall find in this case that the defendaxxt, in enteriixg upon the plaintiff's close, was the supervisor of the road district in which sxxch lands lay, or was duly authorized by such supervisor to enter upon such land for the purpose of . opening or widening such highway, and that the hedge, bushes, or fence removed were within the limits of sxxch authorized highway, and evexx, in the opinion of the supervisor, au obstruction in the way of the public use of such ground for the purpose of such highway ; or if the jury shall fixxd that prior to the alleged trespass the public had been in the peaceable enjoyment and use of said grounds covered by said hedge or fence, and that the existence of the same was a hindrance to the enjoyment of such highway, and that the defendant, in removing the same, was guilty of no wanton or unnecessary injury to the owner of such-property, then, and in either case, your verdict should be for the defendant. * * * Whatever hurts, annoys, inconveniences or damages a person in the enjoyment of a right, is a nuisance in its general acceptation. As applied to this case, whatever hindei’ed or inconvenienced the defendant in his right of transit over the road in question, may be regarded as such nuisance.”
    The defendant excepted to the charge, and requested the court to charge the jury: “That if they should find that the hedge row stood within the limits of the public highway forty feet wide, and within ten feet of the centre of the same, it was, prima facie, a nuisance, and the defendant had the right to remove it, doing no unnecessary damage to the plaintiff; ” which charge, as asked, the court refused to give, but did charge the jury : “ That if they should find that the hedge row stood within the limits of the public highway forty feet wide, and within ten feet of the centre of the same, it was, prima facie, a nuisance, and the defendant had the prima facie right to remove it, doing no unnecessary damage.” Defendant excepted, and asked the court to further charge the jury: “ That the defendant was entitled to the use and enjoyment of the whole of the highway, and the plaintiff had no right to appropriate any portion of it to his own exclusive use, and if the plaintiff allowed the bushes to stand permanently for an unreasonable length of time upon the said highway, they became thereby a public nuisance, and the defendant could not be liable for cutting them down; ” which charge, as asked, the court refused to give, and the defendant excepted. The court further charged the jury: “ That if the road had been opened and used after having been established, it makes no difference whether a formal order had been issued by the commissioners or not; the use of such road after such establishment would be an appropriation by the public, and would entitle the defendant to remove any nuisance which he might find upon the same ; that to entitle the defendant to cut down the bushes in the road, it was not necessary that he should be hindered or inconvenienced in his passing along the same.”
    To reverse the judgment rendered against him, the defendant filed his petition in error in the district court, and assigned for error the refusal of the court to charge as requested, and the charge as given;' also the overruling the motion for a new trial. The district court reserved the ■case for decision in this court.
    
      Whitd&y & Blackford for plaintiff in error :
    Upon the facts established by the evidence the verdict .and judgment should have been in favor of the plaintiff in error.
    The bushes standing upon and obstructing a part of the public highway were a nuisance, and the plaintiff in error ■cannot be held as a trespasser for abating it.
    The jury was misled by the charge of the court.
    The jury must have understood the court to mean that as the supervisor had not cleared off that part of the road, the public had not acquired any rights therein, and that, therefore, the plaintiff in error was a trespasser.
    The width of the road is not determined by the supervisor. S. & C. Stat. 1289, sec. 19 ; lb. 1219, sec. 25 ; lb. 1309, sec. 89.
    We admit that the bushes belonged to Cox, the defendant in error; and we further admit that he was “under no special obligation to remove them.” But whether suffering them to remain in the road constituted a nuisance, depends upon the facts in the case, and should have been given to the jury with the proper qualifications.
    If the hedge was permanently established in the road, and continued therein, thereby rendering the passage along the road less convenient, it would, we apprehend, most clearly be a public nuisance, liable to be abated by any individual who should see proper to do so. Nor is the character of the nuisance made to depend upon whether any body was hindered. The bushes being in the road, and preventing the use of one half thereof, were, per se, a nuisance, without any reference to whom they belonged, or how they came there.
    See Hart v. The Mayor, &c., of Albany, 9 Wend. 584 ; S. & C. Stat. 880, sec. 17 ; Wetmore v. Tracy, 14 Wend. 250, 255 ; 6 Munf. 308 ; 2 Mass. 143 : 7 Johns. 106.
    That there was room enough for teams to pass on the-east side of the road, makes no difference. Davis v. Mayor of New York, 4 Kernan, 524.
    It is not necessary that the person abating the nuisance should be impeded. Hart v. Mayor, &c., 9 Wend. 590.
    The doctrine is fully elaborated in the following other-cases : 9 Paige Ch. 217, 218 ; 4 Kernan, 524 ; 1 Denio, 533 ; 8 Ohio St. 373, 374 ; 12 Ohio St. 90.
    
      Jas. A. Dope and Wm. Gribben for defendant in error :
    Under the facts of the case Phifer was a wrongdoer and' guilty of trespass, and, as such, subject to pay for the damage done.
    
       He cannot justify on the ground that the fence was a nuisance which he had abated. As a private individual, having no authority from the supervisor or any other officer, and acting without any authority whatever, he would not be permitted to take the law into his own hands and assume-the province and powers of court and jury. If a nuisance, it could only be determined to be such, and be removed in the manner pointed out by the statute (S. & C. 880, 881), to-wit, indictment, trial and conviction of the offender. But it was not a nuisance in any sense, nor does it come within the provisions, meaning or object of the statute cited, as shown by the evidence.
    
       Neither can he justify upon the ground that the fence was in the way of, or was an obstruction, hindrance or inconvenience to travel. The statute then in force relating iothe duties of supervisors placed the control of roads exclusively in their hands, and plainly pointed out their duties. (S. & C. 1309, 1310, 1311, 1316, secs. 12, 13, 18, 40.)-The fence was no hindrance or inconvenience, much less an obstruction to travel.
    3. The defendant in' error acquired title and possession of the premises long after the planting of the fence and the opening of the road. Under all the circumstances, it was not an unlawful act in him to permit his fence to remain as it was when he purchased. His occupation of that part of the road was not inconsistent with the right of the public to the easement which it had acquired. Though subject thereto, his occupation could not extinguish the public right. Not having been required by any proper authority to remove the fence, and the ground not being required by the travel on the road, and there being no hindrance or inconvenience to travel caused by the fence, he might well, and without violation of law, or of the rights of any one, permit it to remain, and had a right to have it so remain, until either one of the conditions mentioned, or until the proper authority required the removal — a right with which, under the circumstances, neither Phifer nor any other private person had a right to interfere. We think the above principle indirectly sustained by the authorities here cited : Ingersoll v. Hinder, 12 Ohio, 527; Fox v. Hunt, 11 Ohio, 544; Lane v. Kenedy, 13 Ohio St. 47.
    4. It would be against public policy, and would result in great wrong and injustice, and give rise to strife and litigation to hold that any one not an officer, without any pretense or authority of law, where there is no hindrance or inconvenience to travel, can, at any time, upon his own motion, and without notice, throw down or destroy his neighbor’s fence, upon the assumed ground, whether true or not, that the fence encroaches upon the public highway, thus throwing improved enclosures open to trespassing animals, and without regard to whether that neighbor was ignorant of such encroachment or not, or whether he designed to claim and appropriate the land as against the right of the public to the easement.
    5. Even though the charge of the court below were in some respects erroneous or conflicting, yet as substantial justice was done by the verdict, this court will not interfere with the judgment rendered. 14 Ohio, 502 ; Kugler v. Wiseman, 20 Ohio, 376 ; 15 Ohio, 514 ; 8 Ohio St. 145 ; 6 Ohio St. 294 ; 10 Ohio St. 557 ; French v. Millard, 2 Ohio St. 63 ; 4 Ohio St. 259, 543.
   Day, J.

The action was brought to recover damages for the wrongful destruction of part of a hedge fence standing and growing on the premises of the plaintiff. It appears, that a county road had been established, embracing within its limits the hedge in question. It does not therefore follow that the plaintiff had no right of action for the destruction of the hedge, for the establishment of the road did not extinguish his title in the land over which it passed. The public acquired thereby a mere easement — a right of way, with the powers and privileges incident to that right. The owner of the fee still retained his exclusive right in the trees and herbage growing on the land, for every purpose not incompatible with the public right of way, and he may maintain an action in respect to them, when not taken for the purpose of making or repairing the road, or lawfully abated as a hindrance or annoyance to travelers thereon. Jackson v. Hathaway, 15 Johns. 447 ; Adams v. Emerson, 6 Pick. 56 ; Washburn’s Eas. and Ser. [* 159]

These, then, being the general rights of the public and the owner of land appropriated to a highway, to what extent may an individual, not acting under statutory or official authority, be justified in destroying trees and shrubs standing and growing in a public highway ? This is the principal question in the case, and must not be confounded with the right of the public in such cases acting through its officers or by appropriate judicial proceedings. An individual can not needlessly and wantonly destroy them, for that would be inconsistent with the rights of the proprietor of the soil, and transcend the bounds of the easement acquired by the public, when not necessary to the enjoyment of a right of way. So long as that is unobstructed, there is no reason why the easement of a highway should afford a justification to an individual for the needless destruction of properly belonging to the owner of the land, merely because it happens to be within the bounds of the road as laid out and established. But whenever such property works an annoyance, hindrance or inconvenience to travelers, it becomes a public nuisance, and may be abated or removed by any one who wants to use the road in a lawful way. Aug. on Highways, sec 274 ; 8 Black. Com. 5. “ But it is a general rule, that the abatement must be limited to its necessity, and-no wanton or unnecessary injury must be commited. 2 Salk. 458.” 3 Cooley’s Black. 5, note ; and 15 Ad. & El. N. S. 283. “And the reason,” says Blackstono, “ why the law allows this private and summary method of doing one’s-self justice, is because injuries of this kind, which obstruct or annoy such things as are of daily convenience and use, require an immediate remedy, and cannot wait for the slow forms of justice.” It would seem, then, that the remedy by summary abatement ought to be tolerated only where' there is an annoyance bringing the injury within the reason-of the rule which allows it. The right of an individual to abate an obstruction in a highway, therefore, must depend upon the fact whether it is a hindrance or annoyance to-travelers, that is, whether it is a public nuisance, and, of necessity, is a question in every case to bo decided by a jury..

This view of the case is sustained by authority as well as reason.

Angelí in his treatise on highways (sec. 274), says: “ Neither does this right of abatement, as has been held, go to the extent of justifying the removal of every encroachment upon the highway, unless such encroachment at the-same time annoys and obstructs its lawful use.”

So in Evans v. The City of Cincinnati (2 Handy, 236), it was held that in no case, unless the obstruction impedes-the free use of the street, can an individual resort to the summary remedy of abatement.

So in Harrower v. Ritson (37 Barb. 301), it was held that the jurisdiction of a defendant, who had torn down a fence extending into the highway, was limited by the necessity of tbe case, and if the use of the road was not interfered with, he was a trespasser in removing the fence.

In Hopkins v. Crombie (4 N. H. 520), where a building extended about ten feet into the highway, but did not cover or obstruct any of the traveled part therof, the court held the encroachment not to be such a nuisance as could be abated by an individual unless it actually obstructed his passage.

The same principle was upheld in Graves v. Shattuck, 35 N. H. 257 ; and in Mayor of Colchester v. Brooke, 7 Ad. & El., N. S. 339 ; and in Dimes v. Petley, 15 Ad. & El., N. S. 276.

So in Burnham v. Hotchkiss (14 Conn. 311), the court held that whether an obstruction is a nuisance or not, is a question of fact for the jury, and that a summary abatement would not be justifiable unless the public travel was thereby actually obstructed, hindered or endangered. And this we think is the correct doctrine, both on principle and authority.

We therefore conclude that the charge of the court in the case in hand, and its refusals to charge as requested, were fully warranted and justified. The charge was, to say the least, as favorable as the defendant could properly ask ; nor do we think any seeming inconsistencies in the charge could have operated to his prejudice ; on the contrary, they were decidedly in his favor.

Nor do we think the court erred in overruling the motion for a new trial; for the evidence clearly sustained the jury ' in finding that the hedge of the plaintiff1 was no obstruction, hindrance or annoyance to travelers, or to the defendant, in the lawful use of the road, there being ample space left for them for that purpose.

It follows that the judgment of the court of common pleas must be affirmed.

Welch, C. J., and White, McIlvaine and West, JJ., concurred.  