
    ANDERSON v. YOUNG.
    (Supreme Court, General Term, Third Department.
    December 8, 1892.)
    Nonsuit—Failure of Proof. Where there was some evidence that a fence built by an adjoining owner •along a highway encroached on the highway further than an old fence which had been there 20 years, and suit was brought for the maintenance of a nuisance on account of injury to stock, the question whether such fence did in fact encroach on the highway should have been submitted to the jury; and this, notwithstanding any irregularity in laying out the highway, since it would still, by user and adoption, have been a highway up to the location of the old fence. ' ■
    Appeal from circuit court, Franklin county.
    Action by Rodolphus W. Anderson against Benjamin Young. Motion for nonsuit granted. Plaintiff appeals.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    Gordon H. Main, for appellant.
    Badger & Ide, (John P. Badger, of counsel,) for respondent.
   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 injured, for which this action was brought:

The complaint alleged that the defendant was the owner of certain premises and real estate therein described, along which, for more than 20 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 greeted with the knowledge and consent of the plaintiff, and charges that the injury 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 rods. 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 puf 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 on a dark night. The evidence as to whether this fence was within the bounds of this highway, as the former 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 (1) that it appears from the evidence that the accident was-caused by the negligent and careless manner in which plaintiff’s, horse was held, and not caused by the fence at all; (2) that the plaintiff has failed to prove the fact that this 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; (3) 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 accepted.

In determining whether this nonsuit 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, [Sup.] 19 N. Y. Supp. 616,) 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 further in the highway than the old fence, which had inclosed the highway for more than 20 years before the erection of the wire fence, and this evidence on the question of nonsuit 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 20 years,, and as to which the wire fence was an encroachment; and the question whether that encroachment was a nuisance from which the plaintiff’s, horse was injured was, we think, one for the jury, and the reiusal of the learned judge to send it to the jurjr 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 was 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 it to be a nuisance. In President, etc., v. People, 9 Barb. 175, the court say: “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. Crimes, 350. 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. Harrower v. Ritson, 37 Barb. 301. In Osborn v. 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 nuisancé. See, also, Callanan v. Gilman, 107 N. Y. 360, 14 N. E. Rep. 264; Driggs v. Phillips, 103 N. Y. 77-83, 8 N. E. Rep. 514.

Having reached a conclusion that this case should have been submitted to the jury, 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. All concur.  