It is well-settled law in this State that the proprietors of land adjoining a public highway, are owners of the fee in said highway, and that the public have no higher or other right therein than that of a mere easement, and that such proprietors may make any use of such highway that does not conflict with such easement. Jackson v. Hathaway, 15 Johns. 453; 3 Kent’s Com. 432; Wager v. Troy Union R. R. Co., 25 N. Y. 526; Higgins v. Reynolds, 31 id. 156. The rulings of the judge at'the circuit were in conformity with this doctrine.
Nothing in the shape of a defense was made at the circuit to the plaintiff’s right of action.
The erections of the plaintiff of the drive-ways from the traveled track to his land adjoining the highway were in no sense a nuisance public or private. They did not obstruct the traveled part of the highway, or interfere in any degree with the public easement in or over the roadway as improved by the highway commissioners and customarily used.
A nuisance in a highway must be some encroachment or erection therein, which “hinders, impedes or obstructs the use of the road by the public.” Griffiths v. McCallen, 46 Barb. 565; Peckham v. Henderson, 27 id. 207; Hanman v. Retter, 37 id. 306.
Such a nuisance may, doubtless, be abated by any private person injured thereby, but the nuisance must be an actual obstruction to the highway, as a gate across the same, which was the case cited in 3 Black. Com. 5, of James v. Hayward, Cro. Car. 184, where the gate was placed across the highway, and so fixed that the king’s subjects could not pass without interruption by reason of said gate. See Hart v. Mayor of Albany, 9 Wend. 589, and Witman v. Tracy, 14 id. 256.
The defendant had no right in such highway except to travel in or over it as an ordinary traveler, and such right was in no way inter*288rupted, hindered or interfered with by the plaintiff’s erections. He had no easement in such highway for the purpose of access to the creek intersecting the same, or right in the said highway of a private nature.
The defendant might just as lawfully have cut down the shade trees which the plaintiff might have set out in front of his premises on either side of the highway, or have torn up the walk from his front gate to the road, as to have torn away the erection in question.
It was no defense or excuse to him that some lawyer was advising, aiding or abetting him in commission of the trespass. His act was none the less unlawful, and the jury might properly, in their discretion in such case, give exemplary damages as held by the circuit judge.
No error, I think, was made in the judgment at the circuit, and the judgment should be affirmed.
Judgment affirmed.