Harrower v. Ritson. the defendant had a right to abate it, and in doing so had a right to remove so much of the dam as was necessary to make a safe and convenient passage for all vessels, at any time of tide, which had been accustomed to navigate the river; but that if he removed more of the dam than was necessary, or did any unnecessary injury to the same, he would be a trespasser pro tanto. The jury found a verdict for the defendant, and the judgment of the superior court of New York was affirmed by this court and the court for the correction of errors. The principal questions made and considered were upon the effect of a certain statute, and the age of the dam, which were relied upon by the plaintiff as giving him the right to maintain the dam. And these were the only questions passed upon by the court of last resort. All that was said upon the extent of the right of individuals in the abatement of public nuisances, by Judge Cowen, in delivering the opinion of the supreme court, was this: "And I am aware of no case denying that the remedy by abatement is in all respects concurrent with that by indictment," citing 7 Cowen, 558, and 9 Wend. 315, a mere passing remark, without deciding any thing; merely indicating the current of thought, rather than giving expression to an authoritative opinion, or deciding a point made in the case. (And see Peckham v. Henderson, 27 Barb. 207.) If the unqualified right exists, and any person may of his volition and without process of law abate a public nuisance upon the peril only of showing in justification that the property destroyed or removed is a nuisance, and indictable as such, there can be no distinction made as to the kind or character of the nuisance. It may be a particular trade, which is only obnoxious because carried on in a particular place or in a particular manner; it may be something which affects the health, or the air, or renders the enjoyment of property uncomfortable, or depreciates the value of property; or it may be something which tends to a breach of the public peace—a disorderly house, a gaming house, or a hospital, Harrower v. Ritson. as well as the obstruction of a navigable river, or a public highway, or the inclosure of a common. To suffer any one, without necessity, to become the executor of this branch of the common law, without the intervention of the ordinary forms of law and a resort to the process of the courts, would tend to gross injustice, breaches of the peace and riots, and the remedy would be worse than the evil to be redressed. But if individual action, in the abatement of nuisances, be restricted and the power qualified and limited as by the English cases, and thus cited from the courts of some of the United States, no serious mischief can arise, and none of which the wrongdoer has a right to complain. An individual aggrieved by a private nuisance may have his action, or he may abate the nuisance. A party sustaining a special injury from a public or common nuisance may also have his action, and in the like case he may abate the nuisance. In the language of Lord Campbell, it becomes to him a private nuisance. He may remove that which interferes with his right, to the extent necessary to the reasonable enjoyment of the right of which the thing interposed would deprive him, doing no unnecessary damage. A party, by erecting a nuisance, does not put himself, or his property, beyond the protection of the law. If an individual or member of the community can with reasonable care, notwithstanding the act complained of, enjoy the right or franchise belonging to him, he is not at liberty to destroy or interfere with the property of the wrongdoer. In this case, whatever might have been proper had the plaintiffs been on trial upon an indictment for the nuisance, the requests of their counsel were proper, and the instructions should have been given to the jury as asked for. The justification of the defendants was limited by the necessity of the case, and if the use of the road was not interfered with, the defendants were trespassers in removing the fence. The instructions asked were substantially the same as those given in Renwick v. Morris. Harrower v. Ritson. The judgment must be reversed, and a new trial granted; costs to abide the event. BACON and MULLIN, Justices, concurred. MORGAN, J. (dissenting.) By the common law, any encroachment or incumbrance upon a highway, by which it is rendered less commodious to the people, is a public nuisance, and may be abated without suit. (1 Haw. P. C. 212.) Every portion of the road, as laid out and used, is dedicated to the public and cannot be obstructed so as to interfere with the public travel over such portions, although there may be room to pass on the opposite side. (Id. 365. 16 Vin. Abr. tit. Nuisance, W.) The same doctrine has been held in this state. (People v. Cunningham, 1 Denio, 524. Davis v. Mayor of New York, 14 N. Y. Rep. 524.) And so in Massachusetts. (2 Mass. Rep. 143. 16 Pick. 175.) There may be exceptions to this rule, but they have only been allowed in cases where the pretended obstructions were temporary, or the alleged encroachment was beneficial. It is upon this ground that ornamental trees are considered a public benefit, instead of an obstruction. So a public way may be protected by a wall which encroaches upon the side of it. Doubtless, in all these cases of alleged benefit, the question of nuisance or not must be determined by the jury, in view of all the circumstances of the case. But there is no allegation of benefit here, and by the finding of the jury the plaintiffs' fence was placed within the limits of the highway. It is now said that teams could have passed on the other side without difficulty, or at least the jury might have found so by their verdict. But this is not the test. It requires no argument to show that an obstruction to any part of the road is a nuisance, unless it can be justified upon some ground of necessary convenience or supposed advantage. As no such ground was alleged for placing this fence permanently in the highway, all the authorities concur in pro Harrower v. Ritson. nouncing it a nuisance. There was nothing on which the jury could pass, except the single fact whether the fence was put in the highway. If it was put there without excuse, it was per se a nuisance; and no excuse was offered, except the untenable assumption that it did not obstruct the travel to the south of it, for notwithstanding the obstruction in question, it is said sufficient room could have been found to go along the road on the other side. In my opinion the fence was a public nuisance if it was placed in the highway by the plaintiffs without some good reason to justify the act, whether it left room enough for teams to pass it or not. The jury were instructed that if it was within the limits of the road it was a nuisance, which the defendant might remove. It was left for them to say whether it was within these limits. The case of Peckham v. Henderson (27 Barb. 207) was decided upon other grounds. What the judge said in that case about encroachments was mere dicta, and I think not entirely warranted by the authorities cited. The cases where an obstruction may come short of being a public nuisance, were noticed by the judges in the supreme court of errors in Connecticut in Burnham v. Hotchkiss, (14 Conn. R. 311;) and they do not warrant the views of the counsel for the plaintiff in this case; but are entirely consistent with the decision of this court in Wetmore v. Tracy, (14 Wend. 250.) The judgment should be affirmed. New trial granted. [ONONDAGA GENERAL TERM, October 1, 1861. Bacon, Allen, Mullin and Morgan, Justices.] MCGLASHAN vs. TALLMADGE. Upon a letting of realty, lands or tenements, there is no implied warranty that they are fit for the use for which the lessee requires them. The maxim of caveat emptor applies to the contract of hiring of real property, as it does to the transfer of all property, real, personal or mixed, with one or two recognized exceptions. In the absence of any fraudulent representations or concealment by the lessor, as to the state and condition of the premises let and their fitness for the purpose for which they are hired, it is no defense to an action for the rent, that the premises were, and continued to be, unhealthy, noisome and offensive, and unsuitable for a dwelling. BACON, J. dissented. CTION for rent upon a sealed agreement for leasing a dwelling house in the city of Syracuse, for one year; the plaintiff averring in his complaint that the defendant " entered into the possession of the premises so leased to him as aforesaid." The defendant, in his answer, alleged that the plaintiff, at the time of the letting, fraudulently represented the house to be in good condition and fit for occupation for a family, &c., and that the same was not tenantable, &c. Another defense was that the premises, at the time of the letting, were and continued to be unhealthy, noisome and offensive, and unsuitable for a dwelling, &c. On the trial before the referee, evidence was given that the house was leased by an agent of the defendant, for him, after the agent had inspected and examined the premises, and that soon thereafter the defendant entered into the possession thereof. That for want of proper drainage the house became and continued to be unwholesome, noisome and offensive, and unfit for occupation as a dwelling. The referee gave judgment for the defendant, from which the plaintiff appealed. Smith & Markham, for the appellant. Jas. Noxon, for the respondent. ALLEN, J. There was no evidence of fraudulent representations by the plaintiff, as to the state and condition of |
