(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 Saw. 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. Air. 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*312nouncing 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.
[Onondaga General, Term, October 1, 1861.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.
Hew trial granted.
Bacon, Allen, MulUn and Morgan, Justices.]