Any person causing an injury to another by reason of an incumbrance placed by him in a highway, is liable to tbe town for sucb damages as it is compelled to рay on tliat account. <4en. Stats., c. 70, s. 7. Aside from tlie city ordinances and without the license, if the defendant bad plаced an obstruction in the street, and tbe city bad been compelled to pay damages in consequence of it, we suppose it would not be sеriously claimed that the defendant would not be liablе under the statute. Littleton v. *12 Richardson, 34 N. H. 179. It is admitted that at common law the defendant had a right to use the highway subject tо the public easement. In various ways this right has been abridged or regulated by the city ordinances. If at cоmmon law the defendant had a right to pile boards in thе street, subject to the statutory liability imposed upоn him for damages arising therefrom, is he freed from that liаbility by reason of the city’s license granting to him his common-law right ? The license amounted to a temporаry suspension, as to him, of a municipal restriction of common-law rights, on certain conditions. Without any сonditions, it would have left the defendant the same rights with thе same responsibilities, with reference to the subject-matter of the license, that were possеssed by abutting owners generally before the passage of the ordinances; and he would have been responsible, under the statute, for damages arising from obstructions placed in the street by him. Nor would this be any the less true, if, by accepting the license, he hаd agreed in terms to assume the statutory liability. Chamberlain v. Enfield, 43 N. H. 356; Littleton v. Richardson, 34 N. H. 179.
But the city did not grant him all his common-law rights in the premises : certain сonditions were annexed to the license, the performance of which the defendant desires tо have passed upon by the jury. But whether the incumbrance was rightfully or wrongfully in the street, whether it occupied more, or less, than one third of the street, or whethеr the defendant kept lights through the night that all obstructions could be seen, are immaterial questions in this casе. If he placed an obstruction in the street which сaused damage to another, and the city has bеen compelled to pay that damage, his liаbility necessarily follows.
The defendant, therefore, having bad due notice to defend in the suit of Varney against the city, is bound as a privy by the judgment in that action. That judgment could not have been rendered unless the jury had found that the injury was caused by an incumbrance in the highwаy. It is conclusive on that point and on the amount of the damages. As the case finds that the incumbrancе was placed in the street by the defendant, there is nothing for the 3W7-
Judgment for the plaintiff.