Nutter v. Pearl

Remick, J. A statutory nuisance, in the nature of a highway obstruction (or encroachment, is not necessarily an actual nuisance. Hopkins v. Crombie, 4 N. H. 520, 525, 526; State v. Kean, 69 N. H. 122. So far as public rights and proceedings are concerned, if an obstruction or encroachment is within the terms of the statute there need be no inquiry as to its actual character, location, or effect. But to be the basis of private action it must appear that the obstruction or encroachment complained of is a nuisance in fact. This was distinctly so under the earlier statutes upon the subject (Hopkins v. Crombie, supra; State v. Kean, supra; Graves v. Shattuck, 35 N. H. 257), and a careful analysis of section 1, chapter 59, Laws 1899, convinces us that no change in this respect was thereby made or contemplated. Whether the stepping-stone in controversy was a nuisance, for the purposes of the plaintiff’s case, was, from its character and location, peculiarly a question for the jury. Hopkins v. Crombie, 4 N. H. 520, 525; Graves v. Shattuck, 35 N. H. 257, 265, 270; Tiesler v. Norwich, 73 Conn. 199; Dubois v. Kingston, 102 N. Y. 219,— 55 Am. Rep. 804; Dougherty v. Horseheads, 159 N. Y. 154; Robert v. Powell, 168 N. Y. 411; Allegheny v. Zimmerman, 95 Pa. St. 287,— 40 Am. Rep. 649; Wellington v. Gregson, 31 Kan. 99, — 47 Am. Rep. 482; 15 Am. & Eng. Enc. Law 491. As the plaintiff’s request called for instruction that the stepping-stone was, by mere force of the statute and regardless of its character, location, or effect, a nuisance for the purposes of his case, it was properly denied. No exception ivas taken to the instructions given, and in the absence of evidence to the contrary they were presumably correct. Mitchell v. Railroad, 68 N. H. 96, 117. Exception overruled. All concurred.