Hubbard v. Deming

Church, Ch. J. The defendants requested the court to charge the jury regarding their rights upon the facts which they claimed to have proved; but this was not done. After suggesting some general principles, the instructions to the jury were, that if the plaintiff’s fence “did not obstruct, hinder or endanger the passage of travellers, and did not render the road less commodious to the public,” it was not a nuisance, &c. By this, we understand, and we think the jury did so, that they had only to consider the rights of the travelling public and the plaintiff’s duty as to them, without regard to the defendant’s rights as an adjoining proprietor; which really were the only matters in dispute. A traveller along the public highway may not have a right to turn aside, and remove a fence standing within its lines, which does not obstruct the general use of it, nor interfere with him; while an adjoining proprietor may have such a right. We need not discuss these rights minutely; it was well done by the judges who published opinions, in the case of Burnham v. Hotchkiss, 14 Conn. R. 311. Every proprietor adjoining a highway has a right to reasonable access to its travelled part, and any fence, &c., which shall so annoy or encumber it, as essentially to inter [361] fere with this right, is a nuisance, and may be removed, by such proprietor. In the present case, the public authorities, for the accommodation of the public and travellers along the road, had so constructed it, in front of the defendant’s land, as to render direct access to it inconvenient, if not impossible, without considerable expense to the defendants. This expense they were not bound to incur, if they could reach the road in any other reasonable way, without becoming trespassers themselves. Besides, the defendants were part of the public, and bad a right, as travellers, to get on to it and pass along any part of it, which it was necessary or convenient for them to use; and, if obstructed by the plaintiff’s fence, they had right to remove it, although the public generally was not affected, nor the public travel generally hindered, nor the road made less commodious for common use. We think, that the county court overlooked the special rights of these defendants, in the charge to the jury; and in doing so, mistook the law; and we shall advise the superior court, that, for this cause, the judgment of the county court is erroneous. In this opinion the other judges concurred. Judgment reversed.