town.

*

adopted by the said commissioners shall have the same force over and upon said public and vacant lands as within the corporate limits of said * And if hereafter any person or persons shall, without the permission and consent of the said commissioners, build upon any of said public lands, he, she or they shall forfeit such improvements or buildings to the said town. *** Nothing herein contained shall be construed to authorize any person or persons to build upon or inclose any of the said public lands without permission and consent of said commissioners."

authority to remove the houseboat summarily, but only under town ordinance No. 1, in such case made and provided, and strictly in accordance therewith; in refusing to instruct the jury that the officers of the town had no authority to summarily remove the houseboat under the ordinance adopted relied on by defendant; in instructing the jury that if they should find that the houseboat stood on a public highway, and was a public nuisance, the plaintiff should have re

moved the houseboat and abated the nuisance if notified to do so, and upon refusal or fail

See also chapter 536, volume 14, Laws of ure to remove it, the commissioners had the Delaware.

The defendant, having introduced evidence to show that the land between the building line of the cottages and the waters of Delaware Bay was known as Bay avenue, and was, and always has been, used by the public as a thoroughfare, and that the houseboat, in respect of its location, was an obstruction to public thoroughfare, and a nuisance, the plaintiff endeavored in rebuttal to introduce in evidence a certain lease from the com

right in law to abate the nuisance by summarily removing the obstruction in a reasonable and careful manner.

CURTIS, Ch., delivering the opinion of the court:

The case is here on a writ of error to the Charles Superior Court for Sussex county. M. Murden brought his action there to recover damages for injury to his houseboat missioners of Lewes to the Queen Anne Rail- the beach at Lewes into the water, admittedand contents which had been pushed from road Company to disprove that Bay avenue the beach at Lewes into the water, admittedwas a public thoroughfare. It was contend- ly by order of the commissioners of Lewes, ed that the lots leased to the railroad com- the defendant, claiming that it was an ilpany for the purpose of erecting a pier or had been given to the plaintiff to pull the legal obstruction on Bay avenue. Permission wharf embraced that portion of the beach on houseboat out of the water for repairs, and which the houseboat was located, and in-houseboat out of the water for repairs, and cluded the extension to the water front claim- the owner had ignored more than one notice ed in respect to Bay avenue which fact made such extension of Bay avenue as a thoroughfare impossible.

to remove it.

In the charge to the jury it was properly and clearly instructed to determine whether

the houseboat was such an obstruction to a public highway as to be a public nuisance, and if they so found, then to determine whether in exercising its lawful right to abate the nuisance the defendant exercised reasonable care to avoid unnecessary injury to the property removed. A verdict was

There was testimony that not only had this space always been used as a public thoroughfare, but that it was a most used portion of the beach; also that the houseboat was within the limits of South street, if South street should be considered, it be ing contended that it should be, as extending across the beach, or that portion of Bay av-rendered for the defendant. enue, to afford convenient access to the Del- Of the seven assignments of error the first aware Bay. The lease was rejected as immaterial and irrelevant to the issue. The rejection of the lease was the basis of the principal assignment of error. The other assignments of error were directed to the charge of the court to the jury.

The assignments of error are substantially as follows:

relates to the refusal to admit in evidence the lease executed by the commissioners of Lewes to the Queen Anne Railroad Company of a right of way over the beach front at Lewes, and the other assignments relate to the charge of the court.

[1, 2] The lease was offered in evidence by the plaintiff below in rebuttal. Evidence had That the court erred in refusing to admit been introduced by the defendant, tending to as evidence in rebuttal the record of a lease prove that the place where the houseboat of executed by the commissioners of Lewes to the plaintiff was located was part of Bay the Queen Anne Railroad Company of a right avenue, or South street extended, and the of way over the beach front at Lewes which public user of the beach front to the shore. included the land upon which the house- It was urged by the plaintiff that the lease boat stood; in not giving binding instruc- of certain lots on the beach front in this tions to the jury; in not instructing the locality to the railroad company, with the jury that Bay avenue is not a public high-right to erect thereon piers, showed, or tendway according to the plot and ordinance of ed to show, that the whole beach front was the town of Lewes; in submitting to the jury as a question of fact the location and extent of Bay avenue as a street; in refusing to

not within either of those highways because the lease gave the right to obstruct the public user thereof by piers. The court includ

(108 A.)

It is to be assumed that the houseboat was an obstruction to the free use of a highway by the public, and a public nuisance. It has been so found by the jury for, having been instructed in substance that any unlawful tangible obstruction which interferes with the use of the whole of a highway by the public is a public nuisance, they found for the defendant.

prove, or tend to prove, the issue as to providing a remedy. To the same effect is whether the houseboat was, or was not, with- City of Red Wing v. Guptil, 72 Minn. 259, 75 in a public thoroughfare. This was clearly a N. W. 234, 41 L. R. A. 321, 71 Am. St. Rep. correct ruling. The right to erect a pier did 485. not necessarily carry with it a right to obstruct the public user of the highway, for the piers might be so constructed as not to obstruct such user. The argument made for the plaintiff is that the boathouse was not in a public highway, because the town authorities rightly or wrongly had by lease given the railroad a right to obstruct the locality claimed to be the highway. To use the words of the brief of the plaintiff's counsel, the piers "would have made the extension of Bay avenue impossible as a thoroughfare." But the lease was so clearly irrelevant upon this point and to the issues in the case, that it was rightly excluded from the consideration of the jury. It is the duty of a trial court to exclude immaterial evidence, for it tends to obscure the real issues and confuse the minds of the jurors. The first assignment of error is untenable.

All the other assignments of error relate to the charge of the court to the jury, and the omission to charge as prayed for by the

plaintiff.

The trial court rightly refused to give binding instructions to find for the plaintiff, to instruct the jury as prayed for by the plaintiff, and rightly submitted to the jury as a question of fact the location and extent of Bay avenue as a street; these matters being the subject of the second, third and fourth assignments of error.

The fifth assignment of error is that the court below erred in that it did not deny the right of the town commissioners to remove the houseboat summarily, or otherwise than in accordance with a certain ordinance of the town of Lewes. A disposition of this assignment will dispose of the remaining assignments.

Of course a municipality has no right to so remove from a highway as a nuisance something which is not a nuisance. The cases cited by the plaintiff in opposition to the right to abate nuisances were cases in which it was not shown that the objectionable thing was a nuisance. Coast Co. v. Spring Lake, 56 N. J. Eq. 625, 36 Atl. 21; Dawes v. Hightstown, 45 N. J. Law, 127; Yates v. Milwaukee, 10 Wall. 505, 19 L. Ed. 984; Davis v. Davis, 40 W. Va. 464, 21 S. E. 906.

[5] Independent of the charter powers the commissioners of Lewes had a right summarily, and without a hearing, to remove the houseboat as a public nuisance, as an obstruction to a public highway of the town. Such right is inherent, and no pertinent authority to the contrary has been shown or

found.

A municipal corporation may summarily remove from a public highway any tangible object placed there which so obstructs the public use of the highway as to be a public nuisance. 3 McQuillan on Municipal Corporations, §§ 904, 926, 1370; Joyce on Nuisance, § 345; 1 Abbott on Municipal Corporations, p. 277; Hart v. Albany, 9 Wend. (N. Y.) 571, 24 Am. Dec. 165; Baumgartner v. Hasty, 100 Ind. 575, 50 Am. Rep. 830.

In Baumgartner v. Hasty the court said:

[3, 4] Clearly the town commissioners had "But it is settled without dissent that withpower and authority to prevent and remove out a special grant of authority public corporaobstructions and encroachments in and upon tions may, as a common-law power, cause the any highway of the town of Lewes. Such abatement of nuisances, and if the nuisance canauthority was expressly given by statute. It not otherwise be abated, may destroy the thing is also expressly given power to abate or re- which constitutes it. The authorities do, indeed, move a nuisance of any kind. These powers go much further, for they declare that it is the so given are broad enough to authorize a duty of the corporation to abate public nuisances. It is one of the oldest of the common law rules, summary abatement of whatever obstruction to a highway amounts to a nuisance. abate a nuisance, and, if it is necessary to efthat an individual citizen may, without notice The adoption by the town of an ordinance fectually abate it, destroy the thing which creproviding a procedure for enforcing orders ates it [citing numerous authorities]. These for the removal of obstructions does not lim- authorities, running back as they do into the it the exercise of the general power in a sum- early years of the common law, and extending in mary way and without adopting the pro- an unbroken line to the present time, prove that cedure, for the grant is general and the town not only may a governmental corporation abate is not by the charter limited to an exercise a nuisance by the destruction of the thing conof the power in a manner to be provided by stituting it, but so, also, may a private individof the power in a manner to be provided by ual. It is, therefore, not the delegation of a ordinance. In Hart v. Albany, 9 Wend. (N. new or extraordinary power to authorize a muY.) 571, 24 Am. Dec. 165, the court recog- nicipal corporation to abate nuisances by renized the right to abate a nuisance per se moving or destroying the thing which creates it. summarily, though there was an ordinance *

[6] In summarily abating a nuisance one | fore a justice of the peace in which the deacts at his peril. The court in People v. Yon- fendant was plaintiff. kers, 140 N. Y. 1, 10, 35 N. E, 320, 323 (23 L. R. A. 481, 37 Am. St. Rep. 522). said:

"Whoever abates an alleged nuisance and thus destroys or injures private property, or interferes with private rights, whether he be a public officer or private person, unless he acts under the judgment or order of a court having jurisdiction, does it at his peril, and when his act is challenged in the regular judicial tribunal, it must appear that the thing abated was in fact a nuisance. This rule has the sanction of public policy, and is founded upon fundamental constitutional principles."

[7] One who abates a nuisance must not unnecessarily injure the obstruction. As a necessary inference from the verdict of the jury for the defendant, the town authorities removed the houseboat without doing more injury to it, or the contents thereof, then was

necessary.

There being no error in the record, and none of the assignments of error being tenable, the judgment of the court below will be affirmed here, with costs in both courts on the plaintiff in error.

The plaintiff contends that the defendant requested him to attend said trial and give testimony as an expert witness, and agreed to pay him the sum of $5 for each day's attendance and mileage.

The defendant denies that he made any agreement to pay the plaintiff more than the usual and legal witness fees and mileage, all of which he contends he has paid.

The court instruct you that the plaintiff cannot recover in this case a greater amount than the difference between the amount the testimony shows the defendant has paid, and the legal fees and mileage. Any agreement to pay more than such fees would be against public policy and void. The law and rule of court, which authorize the payment of $5 to a witness testifying in a case as an expert, does not apply to witnesses giving testimony before a justice of the peace, and any agreement to pay more than the legal fees is unenforceable in an action at law. Verdict for appellant.

Larceny or stealing is the felonious taking and carrying away by one person of the perthe part of the taker of appropriating the propsonal property of another, with the intention on

The law and rule of court authorizing payment of $5 a day to a witness testifying as expert does not apply to witnesses giving tes-erty to his own use without the owner's consent. timony before a justice of the peace, and any agreement to pay witnesses more than the legal fees for testifying before a justice is unenforceable by action.

Action by Frederick P. Ruhl before a justice of the peace against James H. Thomas. Judgment for plaintiff. Defendant brings appeal. Trial before jury. Verdict for appellant.

and Phrases, First and Second Series, Lar[Ed. Note.-For other definitions, see Words ceny.]

2. LARCENY 7-REMOVAL OF STOCK FROM OWNER'S PREMISES AFTER CLAIMED TRADE.

If a trade of a mule by defendant for the prosecuting witness' mare and colt had been fully agreed upon, and nothing remained to be the mare and colt were his property, and he had done but the delivery of the mule by defendant,

a right to take them from the prosecuting witness' premises in exchange for the mule, and in

PENNEWILL, C. J., and BOYCE, J., sit- doing so by agent was not guilty of larceny.

ting.

(108 A.)

The facts sufficiently appear in the charge | [2] So you see, gentlemen, the principal of the court. question you are to decide is not what the

For the defendant the court was requested defendant directed his agent to do when he to charge:

That unless the jury believe from the evidence that the defendant feloniously-that is to say, with a wrongful intent-took the property of the prosecuting witness, intending to appropriate it to his own use and knowing that such taking was without his consent, the verdict should be for the defendant.

That if the property alleged to have been stolen was taken from the premises of the prosecuting witness, with his consent, the verdict should be "not guilty."

That if the defendant took the property from the premises of the prosecuting wit ness, in the belief that it was his property, the verdict should be "not guilty."

That if the defendant believed that a trade for the mare and colt had been made between him and the prosecuting witness, and believed he had a right to take the property, the verdict should be "not guilty."

PENNEWILL, C. J., charged the jury in

part:

The defendant is charged in this case with the larceny of a mare and colt alleged to be the property of Joseph Poore, the prose cuting witness.

[1] Larceny, or stealing, is the felonious taking and carrying away by one person of the personal property of another, with the intention on the part of the taker of appropriating said property to his own use without the owner's consent.

The state claims that the defendant and Poore on a certain Sunday had a conversation about the trade of a mare and colt belonging to Poore for a mule owned by the defendant, in which conversation the defendant offered to trade a mule for the mare and colt; that Poore agreed to make the trade if the mule was sound and not over five years old, but that he was to see the mule on the following Monday before agreeing to the trade; that on Monday, the mule, which was neither sound nor young, was left at Poore's home and the mare and colt taken away in

Poore's absence. The state, therefore, claims that when the mare and colt were taken by the defendant, through his agent, Lindale, the trade had not been completed and they were still the property of Poore and taken without his consent.

The defendant contends that there was a definite agreement between him and Poore respecting the exchange of the property before the mare and colt were taken, the trade having been fully agreed upon, and that, therefore, the mare and colt were his property, and that he had a right to take them away when he delivered the mule.

took the mule to the home of Poore, but whether the mare and colt were at that time the property of the defendant or of Poore. If the trade had been fully agreed upon by both parties, and nothing remained to be done but the delivery of the mule by the defendant, then the mare and colt where his property, and he had a right to take them. But, if the trade had not been fully agreed to by Poore, the defendant did not own the mare and colt, and had no right to take them away.

Therefore, if you believe beyond a reasonable doubt that at the time the defendant, by his agent, took the mare and colt they were the property of Poore, and were known by the defendant to be such, and they were taken feloniously and without Poore's consent, your verdict should be guilty.

But, if, on the other hand, you believe that the mare and colt, at the time they were taken, were, by virtue of a trade, the defendant's property, or he honestly believed them to be such, or if you believe they were taken

with Poore's consent, and not feloniously and with criminal intent, your verdict should be not guilty.

having in his possession at one time more Henry Willey was indicted for unlawfully than one quart of spirituous liquor, to wit, five quarts of whisky. Verdict of guilty.

Boyce and Conrad, JJ., sitting.

Daniel J. Layton, Jr., Deputy Atty. Gen., for the State.

James M. Tunnell, of Georgetown, for accused.

At the trial the state offered evidence to prove that the residence of the accused, in Georgetown hundred, was searched by L., a state detective, and J., sheriff of the county, who found concealed in a closet, in a satchel

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes