Northrop v. Burrows , 10 Abb. Pr. 365 ( 1860 )

By the Court.^*—Balcom, J.

—On the supposition that the plaintiff left the wood in the road by reason of the breaking down of his wagon, on which he was drawing it, he should have removed it without unnecessary delay; and as no witness pretended it did not obstruct the road to some extent, it became a nuisance, if it lay there an unreasonable time. (See 9 Wend., 584; Rex a. Jones, 3 Campb., 230.) A man'may throw wood into a highway for the purpose of having it carried to his house, but unless he remove it with promptness, he may be indicted for a nuisance. (See 1 Sergt. & R., 220; 1 Den., 524.) If the wood in question was left in the road for the reason I have mentioned, the plaintiff let it remain there an unreasonable time, and the defendant had the right to remove it as a nuisance.

The only other question in the case is, whether the defendant was guilty of unnecessarily or wantonly destroying the wood.

As a general rule, a person is liable for committing a wanton or unnecessary injury, even in abating a nuisance. The kind of property constituting the nuisance, and the attending circumstances, must be considered in determining whether a wanton or unnecessary injury has been committed in removing it. (See 14 Wend., 131.) The defendant was not bound to handle the wood in question with that care, or deposit it in such a place, as he would household furniture. The plaintiff did not regard the wood as of sufficient value to remove it himself, although he had notice to do so ; and it would be unjust to hold that the defendant should have carried it sixty or seventy rods in order to save it for him. In Lodie a. Arnold (2 Salkeld, 458), which was an action of trespass for pulling down a house made of bricks and other materials, and throwing the same into the sea, the defendant pleaded it was a nuisance, being a house built across the way, and that he pulled down the walls, &c., and they rolled into the sea. The plaintiff demurred, and judgment was given for the defendant. The court said, among other things, “ that when A. has a right to abate a public nuisance, he is not bound to do it orderly, and with as little hurt in abating it as can be; and, therefore, was not answerable in this case for the rolling into the sea.” Blackstone says, a “ nuisance may be abated, that is, taken away or removed, by the party aggrieved thereby, so as he commits no riot in the doing of it.” (3 Blackst. Com., 5 ; see 9 Wend., 594 and 595.) Applying this law to the evidence in this case, the conclusion is unavoidable that the defendant was not guilty of unnecessarily or wantonly destroying the plaintiff’s wood. It follows that the judgment of the county court and that of the justice should be reversed, with costs.

Decision accordingly.

* Present, Masox, Balcom, Campbell, and Pakkbr, JJ.