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§ 272. A private liability to repair a highway, where it exists, is coextensive with that of towns, its measure in both cases being an exercise of ordinary care and diligence in the construction and preservation of the way. It does not extend to accidents, unless these accidents result from a want of this ordinary care and diligence, nor to injuries which are occasioned by the negligence of the party injured. Thus it has been held, that for damages sustained by

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a turnpike company is not liable one who overloads a bridge, if it be of sufficient ordinary strength. Where, by statute, it was provided, that a turnpike company should not be liable for damages occasioned by the breaking of their bridge, to any person, who, without the consent of the toll-gatherer or agent of the company, should drive over the bridge a loaded wagon of more than forty-five hundred pounds weight, it was held, that such consent could not be implied from the frequent unchallenged passage of the wagon with more than that weight, but that the consent must be obtained upon notice expressly given. But this liability may, of course, be enhanced by statute. Thus where it was provided, that a turnpike company should be liable "to pay all damages that might happen to any person from whom toll is demandable, for any damages which should arise from defect of bridges, or want of repair of said turnpike road," the Court held, that the company was liable for any injury or accident to travellers, unless they themselves were chargeable with negli

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1 Townsend v. Susquehannah Turnpike Co. 6 Johns. (N. Y.) R. 90; Baxter v. Winooski Turnpike Co. 22 Vt. (7 Washb.) R. 114; Mathews v. Winooski Turnpike Co. 24 Vt. (1 Deane,) R. 480; Ward v. Newark and Pompton Turnpike Co. 1 Spencer, (N. J.) 323; Talmadge v. Zanesville and Marysville Road Co. 11 Ohio R. 197. In this case, it was held, where a coach was upset by reason of a defect in the road, and the passengers injured, that the company was liable for damage to the coach, but not for damages recovered against the coach proprietors for injury to the passengers.

2 Richardson v. Royalton Turnpike Co. 5 Verm. 580.

3 Pomeroy v. Fifth Massachusetts Turnpike Corporation, 10 Pick. (Mass.) R. 35.

gence, even though from some unforeseen and unavoidable cause the road happened to be out of repair. "It is founded," the Court say, 66 on the consideration, that the toll is an adequate compensation for the risk assumed, and that by throwing the risk upon those who have the best means of taking precautions against it, the public will have the greatest security against actual damage and loss."1 In proceeding criminally against an individual, the indictment must set forth how the liability accrued.2

§ 273. At common law, it is obligatory upon a canal company to take reasonable care to keep their canal free from obstructions, so that all persons who navigate the same may do so without danger. Thus, where a boat was sunk in a canal, and the company, after reasonable notice thereof, neither raised the same, nor placed any signal, or gave notice of the obstruction, the company was held liable for the damage done to the plaintiff's ply-boat, by reason of a collision therewith. And it was remarked by Lord Denman, C. J., "We do not feel the smallest doubt that this action may be maintained. The only one of the numerous cases cited, that appeared to point the other way, is Harris v. Baker, where trustees of a road were held not liable to an action for a personal injury arising from the plaintiff's wife falling, in the night time, over a heap of scrapings placed on the road side by a defendant, who placed no light to give notice of the obstruction. But that case may

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be distinguished, as the action was against public officers who derived no benefit from the road. The present defendants, on the contrary, invite the whole public to navigate their canal, in consideration of the tolls paid. They have lawful power to make the canal in all respects fit for navigation, and particularly

1 Yale v. Hampden and Berkshire Turnpike Corporation, 18 Pick. (Mass.)

R. 355.

2 State v. New Jersey Turnpike Co. 1 Harr. (N. J.) R. 222; State v. King, 3 Ired. (N. C.) R. 411; State v. Wayne, 1 Hawks. (N. C.) R. 451.

3 Harris v. Baker, 4 M. & Sel. R. 27.

to remove the kind of obstructions by which the plaintiffs suffered. It is the same in principle as if they announced the carrying on of a business at premises accessible only by a certain road over their land, which was open to the public for that purpose, but which they only, and not the public, had a right to repair, and then left that road in so bad a state that a person's leg was broken when he came to transact business with them there. A more familiar example, and not of very rare occurrence, is that of a shopkeepker who leaves a trap-door open in his shop, and causes a customer to fall down and suffer injury."

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II. REMEDIES.-1. Abatement.

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§ 274. A nuisance in the common highway may be abated, that is removed or destroyed, by any individual who wants to use it in a lawful way; and he may even enter upon the land of the party erecting or continuing the nuisance, for the purpose of removing it, doing as little damage as possible to the soil or buildings. The reason 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 progress of the ordinary forms of justice. But although any one may abate a common nuisance obstructing a highway, and remove the

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1 The Company of Proprietors of the Lancaster Canal Navigation v. Parnaby and others, 1 Railway and Canal Cases, 695; 11 Ad. & E. 223; 3 Nev. & Per. 523.

2 1 Hawk. P. C. 75, § 12; 2 Roll. Abr. 144, 145; 5 Rep. 101; 9 Rep. 55; James v. Hayward, Cro. Car. R. 184; Arundel v. M'Culloch, 10 Mass. R. 70; Mann v. Marston, 3 Fairf. (Maine) R. 32; State v. Knapp, 6 Conn. R. 418; Cool v. Crommett, 13 Maine R. 250; Loder v. Arnold, 2 Salk. R. 458; Hart v. Mayor of Albany, 9 Wend. 571; Moffett v. Brewer, 1 Iowa (Green) R. 348. 3 111 Black. Com. p. 5 and 6.

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materials, yet he cannot convert them to his own use.1 And the right also seems to be qualified by the exception, that it cannot lawfully be exerted if its exercise involve a breach of the peace. When such is the case, the party erecting the nuisance must be proceeded against according to the ordinary form of criminal procedure. 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. Thus, in New Hampshire, in the case of Hopkins v. Crombie, where the frame and cellar of a building extended about ten feet into the highway, but did not cover or obstruct any of the travelled part thereof, the Court held the encroachment not to be such a nuisance as could, at common law, be abated by an individual unless it actually obstructed his passage. And although, in that State, such an encroachment was declared by statute to be a common nuisance and exposed the offender to indictment, and fine upon conviction, yet the Court were of the opinion that it was not any the more abateable for this reason. So, it has been held, that if property, (as oysters,) be placed in the channel of a public navigable river so as to create a public nuisance, a person navigating is not justified in damaging such property by running his vessel against it, if he has room to pass without so doing; for an individual cannot abate a nuisance if he is no otherwise injured by it than as one of the public. And, therefore, the fact that such property is a nuisance is no excuse for running upon it negligently. And in Burnham v. Hotchkiss, which was similar in its circumstances to Hopkins v. Crombie, the

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1 1 Hawk. P. C. c. 76, § 187.

2 Day v. Day, 4 Maryland R. 262.

3 Hopkins v. Crombie, 4 N. Hamp. R. 520.

4 Colchester (Mayor, &c. of) v. Brook, 7 Ad. & El. R. N. S. 339.

5 Burnham v. Hotchkiss, 14 Conn. R. 311.

Court held, that whether or not a given obstruction is a nuisance is a question of fact for the jury, and that the abatement was not justifiable unless the public travel was, by reason thereof, actually obstructed, hindered, or endangered. In this case two out of the five Judges dissented from this opinion, and Waite, J., in delivering the dissenting opinion, contended: "All erections on a highway, whether in the place used for travel or not, are nuisances, and may be abated, unless they are actually beneficial." And this view is not unsupported by authority.1 But, whatever may be the better opinion thereon, inasmuch as every proprietor adjoining a highway has a right of reasonable access thereto, the exemption does not extend so far as to prevent him from abating, as a nuisance, any obstruction which essentially interferes with such reasonable access, whether it be in or out of the travelled part of the highway.2 Where an obstruction in a highway is authorized by an act of the legislature for a limited period, it becomes abateable as soon as that period expires; and it has been said, that a nuisance, however long-continued, never ceases to be abateable by reason of its antiquity.4

2. Indictment.

§ 275. Indictment is the appropriate remedy both against individuals for positive obstructions and against towns for want of repair. An obstruction, on the part of an individual,

1 Lancaster Turnpike Co. v. Rogers, 2 Barr. (Penn.) R. 114; Rung v. Shoneberger, 2 Watts (Penn.) R. 23; Dimmett v. Eskridge, 6 Munf. (Ohio) R. 308; Gunter v. Gearey, 1 Cal. R. 462; Wetmore v. Tracy, 14 Wend. (N. Y.) R. 250. 2 Hubbard v. Deming, 21 Conn. R. 357.

3 Adams v. Beach, 6 Hill, (N. Y.) R. 271.

4 Arundel v. M'Culloch, 10 Mass. R. 70; but see post, Chap. VII. It has been held that a turnpike corporation have a right to remove fences or other encroachments upon their road and are not compelled to resort to a remedy by action. Estes v. Kelsey, 8 Wend. (N. Y.) R. 555.