Howard v. Robbins

1 Lans. 63

• Court: New York Supreme Court
• Decided: July 15, 1869
• Status: Published

Opinion

Present — Balcom, Boardman and Parker, JJ.

By the Court

Boardman, J.

The positions taken by the defendants are: 1st, that such encroachment is per se a nuisance which any person may remove; 2d, that the action of the trustees of the village of Watkins, under their charter, declaring such encroachment a nuisance, was, under the circumstances, conclusive evidence of the fact, and justified its removal by defendants as the agents of said village.

Neither of these positions is tenable.

It is not pretended that this encroachment prevented the use of the street for its ordinary purposes. It was not, therefore, an obstruction constituting a nuisance. (Peckham v. Henderson, 27 Barb., 207, 211, 212; Griffith v. McCullum, 46 id., 561; Harrower v. Ritson, 37 id., 301.) Every encroachment upon a public highway is not a nuisance. The evidence in this case does not establish such an obstruction as to constitute a nuisance. Nor have the trustees, by virtue of their charter (Laws of 1861, chap. 125, title 4, sec. 4), authority to declare that a nuisance which is not so in fact or in law. If they possessed that power they might make a crime and designate the criminal where the laws recognized neither, for one who maintains a nuisance is liable to indictment. They must act at their peril and within the law. So long as they so act their decisions can be enforced. But they are not beyond the law, and the law cannot be subverted by any adjudication of theirs. (Hoffman, mayor, etc., v. Schultz and others, 31 How., 385.) Every person who assumes to judge of and remove an obstruction to a highway upon the ground that it is a nuisance, does so at his own risk. If he misjudges, he is liable for the damages; if he is right, the law will uphold him. The action of the village .of Watkins in its corporate right and by its agents is subject to the same rule. No power is given it to create and declare that a nuisance which by law is not recognized as such. Even if this encroachment were a nuisance, it would justify only such a degree of abatement as would enable the public to enjoy the right of way. (37 Barb., 301.)

In doubtful cases other modes are provided for determination of mutual rights. Such modes should be pursued where each party may be fairly heard and the rights of each equally protected.

The motion for a new trial should be denied and judgmen ordered for plaintiffs on the verdict with costs.