Without intending to express any opinion upon the question whether the conclusion to which the superior court arrived might be supported as a conclusion upon the facts, we think that the case should have been submitted to the jury, and could not be settled as a question of law.
The action is for the obstruction of the plaintiff’s right of way in a street over which both parties had a right to pass The defendant put the gravel, stones and plank, which constituted the alleged obstruction, upon a part of the way of which he appears to have owned the fee. This was no invasion of the plaintiff’s right, unless it interfered with his use of the way, and made it less safe or convenient. The defendant might repair the way he might improve it; and, within his own part of it, might make any change in its surface beneficial to himself and not tending to incommode any one who had an equal right of way.
Whether the acts of the defendant diminished the convenience of the plaintiff in using the way, was a question of fact for the jury, unless the undisputed facts made it clear beyond all reasonable controversy.
Looking at the evidence, then, in the light most favorable to the defendant, we find, in the first place, that he placed stones and gravel upon the carriageway and sidewalk and across the gutter, raising the grade of the road, and causing it to slope from the fence toward the centre of the carriageway. Whether this would be an improvement or an injury, would of course depend upon the shape of the ground before it was done. All that is reported upon that point is that the street descended from the plaintiff’s land to and beyond the defendant’s, and that there was a place in front of the defendant’s premises where water had stood so as to create a public nuisance, which the board of health required the defendant to abate. The change by filling might make the ground more even, the inclination of the surface more gradual, or convert a low and muddy spot into a firm and hard one. It is further suggested that, by closing the gutter entirely below the plaintiff’s premises, the water was thereby forced across the street, “ to the manifest injury of the roadway.” But we come again to a question of fact. It is sometimes desirable *451that the water should cross a road on the descent of a hill; and a very common and serviceable contrivance to produce this result is used by highway surveyors in the country, called a water-bar; a ridge of earth or gravel built in a slightly diagonal direction across the centre of the road. There is nothing reported to show that the taking the water from one side of the road to the other was not beneficial. It might pass off so more freely, or present the washing out of the road-bed.
The remaining question, of the effect of the plank upon the use of the way, seems to us equally open to discussion. If the plank was but two inches and a half at the inside of the sidewalk, and diminished gradually in height to the middle of the street, it would be for the jury to say whether it would cause a perceptible inconvenience in the use of the carriageway. And on the sidewalk, where it might require the stepping up and down a height of two or three inches, we cannot say as a matter of law that it was an unreasonable or substantial interference with the way. In all our towns and cities which have sidewalks, there are frequent slight changes in the level, caused by a change from brick to flag-stones or gravel, to leave space for entrance to passageways for carriages from the street, or other purposes, which can hardly be regarded as defects or obstructions in the way. Whether the gravel could be kept in place without such a protection, or would be liable to wash away; whether it would be better for the plaintiff to step upon the plank, or into a miry place caused by water standing in the spot which the defendant filled up; and whether the grade of the street was such as to make a slight step up a convenience or an obstruction, are questions which we have no means of solving by the evidence reported. Exceptions sustained.