After dark in the early evening of the 28th of September, 1903, the plaintiff, was driving along a public highway -from the village of Newark, in the county of Wayne, wlien he uiet an automobile which frightened his horse so that he suddenly veered tb one side, running upon a pile of muck at the side of the road, overturning the vehicle and permanently injuring the plaintiff.
The defendants own a farm contiguous to the place of the' accident. They had drawn muck by the side of the road from their hog yard in May and June prior to the accident, because it was more convenient tp keep it in that place than on the farm. The pilé was about one hundred and seventy feet in length, fourteen or fifteen feet in width .and varying in height from two to- four feet, and extending to within four feet of the beaten track. Nearly one-third of the highway, therefore, was. appropriated by this pile of hog manure for. four months. The land was comparatively level so that the whole highway between the fences could be driven over.
It is-claimed that this was a lawful use of the- highway by the • defendants because" they were the adjacent proprietors and their fee extended to its centei;. I do not so understand the authorities.
In Cohen v. Mayor, etc. (113 N. Y. 532) a wagon was stored in '. the highway in front of the premises of the adjacent owner, and ‘ „the court in commenting on the right to use the highway for this purpose says, at page 535 : “ The primary Use of a highway- is for ■the purpose of •permitting the passing and fepassing of the public and it is entitled to the unobstructed and uninterrupted use- of the entire width of the highway for that purpose.”- And again : “ It is no answer to the charge of nuisance that, even with the obstruction in the* highway there is still room for two or more wagons to pass, nor *789that the obstruction itself is not a fixture. If it be permanently, or even habitually in the highway, it is a nuisance. The highway may be a convenient place for the owner of carriages to keep them in, but the law looking to the convenience of the greater number, prohibits any such use 'of the public streets. The old cases said the king’s highway is not to be used as a stable yard, and a party cannot eke out the inconvenience of his own premises by taking in the public highway. These general statements are familiar and borne out by the cases cited.”
In Tinker v. N. Y., O. & W. R. Co. (157 N. Y. 312) the defendant, the owner of the fee, had placed some timbers within the boundaries of the highway at which the plaintiff’s team was frightened, running away and throwing her from the wagon, and she recovered in an action for negligence. The Court of Appeals in affirming the judgment say (at p. 318): “The primary purpose of highways is use by the public for travel and transportation, and the general rule is that any one who- interferes with such use commits a nuisance.” The court then comments upon the temporary appropriation which may be made by an ad jacent owner as a matter of necessity. It indorses, in considering that question, the doctrine enunciated in Flynn v. Taylor (127 N. Y. 596) where it was held in order to justify such an obstruction that “ two facts, however, must exist to render the encroachment lawful: 1 — The obstruction must be reasonably necessary for the transaction of business; 2 — It must not'unreasonably interfere with the rights of the public.” Then the court in the Tinker case add : “ It follows that if an encroachment be not justified by these two facts, it is unlawful and a nuisance. * * * The rule relating to encroachments on highways is not confined to obstructions in the beaten track, but embraces all parts of the highway; nor is it necessary that the injury should be done to a traveler coming in contact with the obstruction.”
To the same effect are Eggleston v. Columbia Turnpike Road Co. (82 N. Y. 281); Houghtaling v. Shelley (51 Hun, 598); Halstead v. Village of Warsaw (43 App. Div. 39); Dygert v. Schenck (23 Wend. 446).
The court permitted the jury to find whether this deposit of compost was a dangerous obstruction, one that impeded travel upon the *790highway, and the verdict established the question "of fact in favor of the plaintiff upon that proposition, and its submission at all to the jury, in view of the undisputed evidence, is sufficiently favorable to; the defendants. The defendants did not in their answer allege any right to pile the muck in the highway in front of their farm; they did not ask that any suchs question bé -submitted to the jury, and in the motion for nonsuit their counsel assumed that ho such right existed!
The evidence justified the jury in finding that the injuries would not. have happened to the plaintiff except for this .compost heap. The land contiguous to the highway was level, the muck was piled up about four feet high and as soon as the wheels of the cart ran upon it the vehicle was turned over. If the accident would not have occurred except for this unlawful obstruction in the highway the defendants. are liable, for the muck pile may be said to have •been one of the inducing causes of the injuries to the plaintiff. (Ring v. City of Cohoes, 77 N. Y. 83; Phillips v. N. Y. C. & H. R. R. R. Co., 127 id. 657.)
Nor do I think the court should interfere with the size of the verdict. If the story of the plaintiff and his witnesses .is true the jury have hot awarded an unreasonable"sum. If li.e is malingering he is not entitled to substantial damages at all.. The jury have passed upon this question and there'is no occasion for our interference, unless we set aside the verdict, and I do not think it is against the weight of evidence. ,
I think the judgment should be affirmed, With costs.
Kruse, J., concurred.
’ . Judgment and order denying motion for new trial on the minutes reversed and new trial ordered, with costs to the appellant, to abide event. ,