The opinion of the court was delivered by Justice Ford.

Reuben Runyon declared, in an action on the case, on his ownership of a lot of land, “ situate on Town-lane, in the city of New Brunswick,” and of a house and barn thereon ; and that the defendant dug a ditch in the lane, “ round about his lot, and in front of the house and barn, so that access to them with his horses and wagon, became very inconvenient and hazardous; to his damage.” The ditch in Town-lane, is prima facie indictable as a common nuisance. No man may dig a ditch in a lane of the city, without authority. An individual suffering special damage by a common nuisance, may sue for the injury peculiar to himself, by means of it. 2 Bl. Com. 220. The court conceiving that, if any action lay, it should be trespass, ordered a nonsuit; they mistook it for a ditch on the plaintiff’s land, when it was not on it, but only round about and in front of his land. If the defendant relied on a justification, either as being overseer, or claiming a private right to amend any highway, he ought to have been called on to prove it after the plaintiff had proved his case. The nonsuit appears to me to have been wrong, and ought to be set aside.

Judgment reversed.