23 Wend. 445 | N.Y. Sup. Ct. | 1840
By the Court, The evidence was clearly sufficient to go to the jury upon the question whether the injury arose from the cause alleged; and the nonsuit cannot be sustained, unless the obligation to keep the bridge in repair had devolved on the town.
The defendant certainly committed no (trespass in digging the ditch. It was on his own soil. The only right adverse to his was one to have a common highway for the purposes of travel. All the public could require was, that he should make and keep the road as good as it was before he dug his ditch. That he accomplished by building a substantial bridge originally, which did not get out of repair for a number of years. The road, however, in the end, proved to be less safe than it was when the bridge was’ first built, certainly less so than before the ditch was dug. In suffering this, the defendant came short of his obligation to the public. Any act of an individual done to a highway, though performed on his own soil, if it detract from the safety of travelers, is a nuisance. Edmonds, senator, in Hart v. Mayor, &c. of Albany, 9 Wendell, 607, and the books there cited, A ditch dug in a public highway was specifically pronounced to be such by Savage, Ch. J. in Harlow v. Humiston, 6 Cowen, 191, and Sutherland, J. in Lansing v. Smith, 8 Cowen, 152. Special damage arising from it, therefore, furnishes ground for a private action, without regard to the question of negligence in him who digs it. The utmost care to prevent mischief will not protect him, if the injury happen without gross carelessness on the side of the sufferer. Harlow v. Humiston, 6 Cowen, 189, 191. Caution is [ *448 ] a *defence predicable of him only who is in legal pursuit of his own business, or engaged in the legal use of his own property. The moment a plank became liable to slide from the bridge, or any other serious difference arose against its safety, as compared with the original unbroken ground, the ditch took the character of a nuisance. The plea could only be, in substance, “ true, I was committing a crime against the public : but I took every precaution that it should not injure the plaintiff personally.” Was such a defence ever heard of?
It is impossible to maintain, as the defendant’s counsel has attempted to do, that ditches may be thus dug by owners for their own benefit, and the bridges over them be made a charge to the town, in consequence of a few years’ indulgence on the part of the public. The travelling being in the mean time made perfectly safe by the owner of the bridge, there is nothing adverse to the common interest which presses for interference by indictment, or under the statute. 1 R. S. 517, 521, 2d ed. § 106 and 135. The affair, therefore, lies along, almost of course, by mere sufferance, till the bridge becomes a nuisance. It is then in perfect season to correct the evil by the usual remedies. The fair construction of the delay and acquiescence is.
Had the town agents actually taken the bridge under their care, and repaired it for a long time, there might have been a question for the jury whether they had not made it *a town bridge. But no such [ *449 ] evidence was given. The case is entirely different from that where an individual builds a bridge over a natural stream. There it is not necessary for his own purpose merely; and if the public use it, there is certainly no reason for the town declining to keep it in repair. The obligation to do so is no less cogent, at least, than if they had also been put to the expense of erecting it in the first place. The case can be made in no way stronger for the defendant here, than it was for the Buffalo Hydraulic Company in Heacock v. Sherman, 14 Wendell, 58, 60. In that case, the present chief justice declared, after looking into the authorities, that the duty of repair lay upon the company ; and that if the action had been against them instead of a stockholder, they could not have escaped damages for any private mischief occasioned by it; yet it was lawful, though in the highway, being in that ease authorized by an act of the legislature.
The counsel for the defendant insists that he, being owner, had the exclusive right to enjoy and make any use of his land not inconsistent with the public use of the easement, and cites 15 Johns. R. 452, 491; 12 Wendell, 98 ; 1 Cowen, 238. In admitting the defendant’s right to dig this ditch, I »have conceded all that his counsel claims ; and I am quite sure all that can be claimed by any of the numerous authorities announcing the relative rights of owner and government in a highway. The difficulty lies in the bridge being dangerous, a thing clearly inconsistent with the public use, unless kept perfectly safe.
The general duties of commissioners and overseers to keep bridges in repair is next insisted on at length, and need not be denied. The answer has already' been given, viz. a bridge erected exclusively for private benefit makes an exception. The duties of these officers, as prescribed by positive enactment, are embodied in R. S. 500 to 505, 2d ed. pt. 1, ch. 16, tit. 1. art. 1 and 2. The commissioners are to cause the highways and bridges, which are or may be erected over streams intersecting highways, to be kept in repair. § 1, sub. 4. This is in general to be done through orders to the overseers. Id. sub. 5, 6, 7, § 6, and § 16, sub. 1.
Such authorities as these certainly have abundant application to the principal case ; but of course, would not, as they all have been cited by counsel for the defendant, except upon the assumption that the bridge now in question must have been at least of some little public utility ; whereas the very necessity for its erection arose out of a nuisance which was the work of the defendant himself. The whole object of the bridge was to protect him
Among other grounds, it is supposed that the plaintiff was tied up to his remedy for the penalty given by 1 R. S. 517, 2d ed. § 106, or to the treble damages of id. 521, § 135. These provisions are merely cumulative. The first would afford no redress for the private injury ; and it would be a singular doctrine that a party shall not waive treble damages given for his own benefit. A statute gives treble damages Tor a tres- [ *452 ] pass : was it ever doubted that a party might waive the penalty, and sue for single damages, in despite of his antagonist ? It is supposed that Bartlett v. Crozier, 17 Johns. R. 439, gives countenance to such a conclusion. But no case or argument to .that effect can be made to bear the color of law.
There was no pretence, as is supposed, for imputing gross negligence to the father of the plaintiff below, who was driving his mare. No doubt the doctrine is well settled and rational, that, though the defendant obstruct the highway, yet if the plaintiff seeing, and being able to appreciate the danger, run into it, when he might easily have avoided it, he cannot recover. The cases cited to show this, are Butterfield v. Forrester, 11 East, 60, and Barlow v. Humiston, before cited ; but they do not apply.
We are clear that the rights and obligations of the parties were entirely misapprehended by the court below. The judgment must therefore be re” versed.