Corthell v. Holmes

Haskell, J.

Trespass, q. c. The defendant, by brief statement, justifies all the acts charged in the declaration as done in the abatement of a nuisance that obstructed a public way through and over which he had the right of passage. The plaintiffs might elect to go to trial and require the defendant to prove the truth of his plea ; or he might elect to admit the truth of it, and claim that, if true, it was conduct unauthorized by law and therefore no defense to the action. If the declaration had not described the close by metes and bounds, the plea very likely might be held bad for not describing the land upon which the defendant justifies the seeming trespass, and thereby give the plaintiffs opportunity to assign another close as the locus, if the defendant’s *380acts were not confined to the close described in his plea; but the plaintiffs did describe the close specifically upon which the supposed trespass was committed, and are met by plea justifying the acts upon that close, and, instead of taking issue before the country upon the truth thereof, elected to demur thereto and say, true, your acts were done just as you say they were, but nevertheless they were illegal and in law are no defense. So the question comes, whether the removing of obstructions from a public way by a traveler is a trespass against one who has seen fit to close the way and take possession of the land within its limits.

Any obstruction placed within the limits of a public way is a nuisance at common law, as well as by statute. R. S., c. 17, § 5. The easement of the public is co-extensive with the exterior limits of the way, and the question of nuisance does not depend upon the interruption of travel. Commonwealth v. King, 13 Met. 115. If the nuisance be an obstruction of travel, then the traveler’s rights are interfered with and he may remove it. Wales v. Stetson, 2 Mass. 143. "The traveler may use any part of the way to travel upon and, if obstructed, in the exercise of that right he has a remedy against the person unlawfully placing the obstruction there.” Penley v. Auburn, 85 Maine, 281. If a gate be placed across the way, as in Wales v. Stetson, supra, it would be senseless to say that the traveler by removing it wnuld commit a trespass. Or that, as in Dickey v. Telegraph Co. 46 Maine, 483, where a telegraph wire hung so low as to catch the top of a stage and overturn it, the traveler might not lawfully have removed it and prevented the mischief resulting in that case; and, as the court say in Banks v. Highland Street Railway Company, 113 Mass. 485: "The wire, at least while looped across the street so that it might be hit by passing carriages, was a nuisance, which any person lawfully traveling on the way and incommoded by it, might remove,” citing Arundel v. M’Culloch, 10 Mass. 70, and Wales v. Stetson, supra. This doctrine is the logic of Dyer v. Curtis, 72 Maine, 181; Holmes v. Corthell, 80 Maine, 31; James v. Wood, 82 Maine, 173; Lancey v. Clifford, 54 Maine 487; Gerrish v. *381Brown, 51 Maine, 256; Veazie v. Dwinel, 50 Maine, 487; Knox v. Chaloner, 42 Maine, 157, and Brown v. Chadbourne, 31 Maine, 9.

The defendant’s plea avers that he removed the incumbrances, placed in the way by the plaintiff, with due care and without damage more than necessary to secure the passage for himself and his teams, agents and servants over the same. All this is admitted by the demurrer, and it is a good defense.

Exceptions overruled.