Any person causing an injury to another by reason of an incumbrance placed by him in a highway, is liable to the town for such damages as it is compelled to pay on that account. Gen. Stats., c. 70, s. 7. Aside from the city ordinances and without the license, if the defendant had placed an obstruction in the street, and the city had been compelled to pay damages in consequence of it, we suppose it would not be seriously claimed that the defendant would not be liable under the statute. Littleton v. Richardson, *Page 12 34 N.H. 179. It is admitted that at common law the defendant had a right to use the highway subject to the public easement. In various ways this right has been abridged or regulated by the city ordinances. If at common law the defendant had a right to pile boards in the street, subject to the statutory liability imposed upon him for damages arising therefrom, is he freed from that liability by reason of the city's license granting to him his common-law right? The license amounted to a temporary suspension, as to him, of a municipal restriction of common-law rights on certain conditions. Without any conditions, it would have left the defendant the same rights with the same responsibilities, with reference to the subject-matter of the license, that were possessed by abutting owners generally before the passage of the ordinances; and he would have been responsible, under the statute, for damages arising from obstructions placed in the street by him. Nor would this be any the less true, if, by accepting the license, he had agreed in terms to assume the statutory liability. Chamberlain v. Enfield,43 N.H. 356; Littleton v. Richardson, 34 N.H. 179.
But the city did not grant him all his common-law rights in the premises: certain conditions were annexed to the license, the performance of which the defendant desires to have passed upon by the jury. But whether the incumbrance was rightfully or wrongfully in the street, whether it occupied more, or less, than one third of the street, or whether the defendant kept lights through the night that all obstructions could be seen, are immaterial questions in this case. If he placed an obstruction in the street which caused damage to another, and the city has been compelled to pay that damage, his liability necessarily follows.
The defendant, therefore, having had due notice to defend in the suit of Varney against the city, is bound as a privy by the judgment in that action. That judgment could not have been rendered unless the jury had found that the injury was caused by an incumbrance in the highway. It is conclusive on that point and on the amount of the damages. As the case finds that the incumbrance was placed in the street by the defendant, there is nothing for the Jury.
Judgment for the plaintiff.
ALLEN, STANLEY, SMITH, and CLARK, JJ., did not sit: the others concurred. *Page 13