By the Court,
Johnson, J.The exception by the plaintiff’s counsel to the charge and direction of the court, to render a verdict for the defendant, is well taken. This direction was given after the counsel on each side had summed up the cause to the jury. It was clearly a case for .the jury to determine, upon all the evidence. The court held that the defendant owed no duty to the plaintiff, upon which an action would lie for negligence on its part, and that what was shown to have been done by the defendant, assuming that it caused the injury, was not a public nuisance.
In this, I think, the learned judge mistook the law.. The plaintiff' had the right to be there with his team. He was a boatman on the canal, and his right to travel with his team upon‘the towing-path, was at least equal to that of a traveler, upon a public highway. The towing-path on our canals, is a public highway, for all boatmen using the canals, as the plaintiff was on this occasion. The State provided it for that purpose, and various statutes have been passed and regulations adopted, for the purpose of securing its unimpeded and safe use, to boatmen and others lawfully using or employed upon the canals. The same rule is applicable in cases of this kind, which governs in respect to acts done upon a public highway, which render traveling there unsafe. The plaintiff, and *309all others similarly situtated, have the same right of passage. over this way, without exposure to acts from third persons, which render such passage dangerous, that ordinary travelers have’ upon public highways.
The general doctrine upon this subject is, that “ any act of an individual done to a highway, though performed on his own soil, if it detract from the safety of travelers, is a nuisance.” (Hart v. Mayor &c. of Albany, per Edmonds, Senator, 9 Wend. 607. Dygert v. Schenck, 23 id. per Cowen, J., 447. 1 Wait’s Law and Prae. 749, 750.) This case is quite analogous to that of Conklin v. Thompson, (29 Barb. 218,) where the plaintiff’s horse was frightened, and was injured and died, in consequence of the explosion of a fire cracker in the street, when the plaintiff and horse were passing. The general doctrine laid down by the court in that case is quite in point here. (See also, Congreve v. Smith, (18 N Y. at p. 82.) The evidence in the case tended very strongly to show that • the plaintiff’s mules became frightened, and jumped into the canal and were drowned, by reason of a strong current of air coming from a pipe projecting from the defendant’s mills, filled with dust and pieces of wool which blew directly upon, and across the towing-path, and hit the mules as they were passing. The defendant’s factory stood in close proximity to the towing-path, upon the defendant’s own ground, and the pipe was connected with a wool picker inside, which was operated by a blower, and the pipe was used to conduct and carry off the dirt and dust from the wool, and other refuse matter from the machine outside .the building. Occasionally, and quite frequently, as the evidence tends to. show, shreds and fibres, and locks of' wool were thus carried off. The pipe was passed out through a window in the factory, some two feet above the surface of the towing-path. It did not reach over upon the path, nor beyond the defendant’s premises, but the current of air issuing from it, filled- as before described, *310when the machine was in operation, was of such force as to drive the dust and .other matter clear across the path, into the canal on the other side. There was much other testimony showing, or tending to show, that other teams had been frightened there before, from the same cause, and that one other animal had jumped into the canal in consequence, as the plaintiff’s animals did.
The act of ejecting this current of air and material upon and across the towing-path, is of the same character, precisely, as would be the act of exhausting steam from an engine, stationed in proximity to a highway, upon and across such highway, where travelers were passing with their teams. The latter act would, perhaps, be more obviously dangerous, but the difference is of degree only. It appears from the evidence that, since the accident in question, the defendant has put an elbow upon this pipe, so as to conduct the current of air and dust below and under the mill, and away from the towing-path.
It was clearly a question for the jury to determine, upon all the evidence before them, whether this practice of the defendant rendered the use of the towing-path hazardous, and caused the injury in question. If if • did, the act was wrongful and the defendant is liable. The wrong consisted, not in using the machine and pipe by the defendant upon its own premises, but in invading the way with the current of air and dust, to the prejudice of those rightfully passing thereon. The case of Nicholson v. Erie Railway, (41 N. Y. 525,) relied upon by the defendant’s counsel, has no application to the case before us. In that case the. plaintiff’s intestate was killed upon the defendant’s premises, and by reason, in part,-of his own contributory negligence. The cases of Moshier v. The Utica and Schenectady R. R. Co., (8 Barb. 427;) Coy v. The.Utica and Schenectady R. R. Co., (23 id. 643 ;) and Williams v. N. Y. Central R. R. Co., (18 id. 222,) áre cases where the defendant had the right secured by statute to do the acts complained of. In all *311that class of cases, t'he acts so done are not deemed in law to be nuisances, and no action will lie, unless there is an abuse of the right, or some irregularity in the manner of exercising it. Here, the defendant had neither a statutory nor a common law right to eject a stream of air and dust upon the towing-path.
[Fourth Department, General Term, at Oswego, May 7, 1872.Mullin,
P. J., and Johnson and Talcott, Justices.]
' Whether there was any negligence on the part of the plaintiff, in not saving his animals after they were in the canal, was a question for the jury in fixing the measure of damages.
A new trial must, therefore, be ordered; with costs to abide the event.