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tation of chastity, but not as a nuisance. ¿ When the exposure is to two or more persons, it is indictable as an offence against decency. When it is in a public place, and in such a shape and way that it is in the view of by-standers, passers, or neighbors, then it is a nuisance, though it is not averred in the indictment that it was actually seen, and though there is only circumstantial proof that it was seen by others beside the testifying witness.

XIV. OBSTRUCTING HIGHWAYS AND NAVIGABLE STREAMS.

1. Distinction between Public and Private Roads. § 2414. To sustain an indictment for nuisance in obstructing a road, the road must first be shown to be public and not private; since, as has been seen, no indictment lies for a nuisance unless the offence be to the public generally, as distinguished from a special and limited class of persons. j A public road, however, to be thus protected, need not have been formally accepted by the municipal authorities. It is enough if over it the public have a right to pass and repass, whether freely, or on payment of a fixed toll. k Any public square, any space of ground dedicated to public use, to which the public have the right of access, fall within the same general category. Nor does it matter that the road is owned by a private corporation. Supposing that the public has a right, on payment of a fixed toll, to travel on it, an indictment for nuisance lies for its obstruction. I The same protection is thrown over navigable rivers, and harbors in the open sea and great lakes. m

2. Obstruction of Public Roads. § 2415. Any such obstruction of a public road as materially interferes with public convenience is indictable as a nuisance ; n

¿ State v. Millard, 18 Vt. 574 ; 1 R. v. Preston, 2 Lewin, 193; Com. though see Fowler v. State, 5 Day, 81. v. Wilkinson, 16 Pick. 175.

j See ante, 2363 ; People v. m State v. Graham, 15 Rich. (S. C.) Jackson, 7 Mich. (3 Cooley) 432.

R. v. Watts, 2 Esp. 675; R. v. k Kelly v. Com. 11 S. & R. 345; Ward, 4 Ad. & E. 384; R. v. Tindell even though the road was laid out and established by an erroneous judgment of the county court.o

310;

, Com. v. Wilkinson, 16 Pick. 175; 6 Ad. & E. 143; R. v. Betts, 16 Q. B. Mills v. State, 20 Ala. 86; Com. v. 1022 ; People v. St. Louis, 5 Gilman, Gowen, 7 Mass. 378; Cleaves v. Jor- 351 ; Moore v. Sanborn, 2 Mich. 219. dan, 34 Me. 9; Parkinson v. State, 2 n Gregory v. Com. 2 Dana, 417; West Va. 589.

Kelly v. Com. 11 S. & R. 345; Com. o State v. Spainhour, 2 Dev. & B. quence of their remaining there to 547. See on this point fully, Wh. take their turns, and of the strife

3. Instances of Obstruction. § 2416. Constables obstructing the streets by their sales are indictable for a nuisance ; p and it is unlawful, in a large city, for an auctioneer to place goods, intended for sale, in the public streets. Where a wagoner occupied one side of a public street, in a city, before his warehouses, in loading and unloading his wagons, for several hours at a time, both day and night, and having one wagon, at least, usually standing before his warehouses, so that no carriages could pass on that side of the street, and sometimes even foot passengers were incommoded by cumbrous goods lying upon the ground ready for loading ; this was holden to be a public nuisance, although it appeared that there was room for two carriages to pass on the opposite side of the street. r

So it is a nuisance to collect in a highway, by the use of violent and indecent language, 8 or by any public show or game, t a crowd by which the street is choked; and to set springguns pointed to the highway, by which life is endangered. u

The same rule applies to a stall placed on the footway of a public street for the sale of fruit and confectionery, although the defendant pay rent to the owner of the adjoining premises for the use of so much of the pavement as is occupied by him;v and to v. Gowen, 7 Mass. 378; State v. Knott, and the teams and carriages of the 2 Speer, 692; Freeman v. State, 6 purchasers were accustomed to collect Port. 372 ; Co. Litt. 56 a; 1 Hawk. P. there in great numbers to receive and C. c. 76, s. 1; 2 Russ. on Crimes, 340. take away the article; and in consefront steps erected to a dwelling in such a way that they protrude into the highway. w But the obstruction must be material. Hence telegraph posts, erected by the municipal authorities, are not the basis of an indictment for nuisance. X

among the drivers for priority, and p Com. v. Milliman, 13 S. & R. 403. of their disorderly conduct, the street 9 Passmore's case, 1 S. & R. 217. was obstructed and rendered incon

r R. v. Russell, 6 East, 427; and venient to those passing thereon ; it see R. v. Cross, 3 Camp. 227. Where was held that the defendants were the defendants, who were proprietors guilty of nuisance. People v. Cunof a distillery in the city of Brooklyn ningham, 1 Denio, 524. were in the habit of delivering grains s Barker v. Com. 7 Harris, 412; remaining after distillation, called Bell v. State, 1 Swan, 42. slops, by passing them through pipes t Ante, $ 2400. to the public streets opposite their dis- u State v. Moore, 31 Conn. 479. tillery, where they were received into v Com. v. Wentworth, Brightly R. casks standing in carts and wagons; 318; Smith v. State, 6 Gill, 425.

Prec. 781, n.

4. Prescription no Defence. § 2417. A grant will not be presumed of a part of a public square or street from lapse of time, so as to bar an indictment for a nuisance. y Thus, where the travelling public had for ten years actually ceased to use a portion of a road established by public authority, and had by use acquired a right to a portion of the land of the trustees of a church for highway purposes, instead of the said portion of old road ; it was held, that the acquisition of a right of way over the land of the trustees did not estop the state from asserting its claim to the old road, nor shield the individual obstructing it from punishment. 2

5. Railway Obstructions to Common Highways. § 2418. A railway train, crossing an ordinary highway, being productive of anxiety if not of danger, to those passing such highway, is indictable as a nuisance, unless expressly chartered by the state. Such charter is to be strictly construed ; and is not to be regarded as authorizing the railway to cross any highways except in the line specifically prescribed. a Even when authorized to cross a particular highway, the corporation may be indictable for a nuisance if its right is negligently or oppressively exercised. But evidence that daily twenty trains on a railroad, and about as many vehicles on a highway, passed over a place where the railroad crossed the highway at grade, but was in full view from the highway at any point within a hundred and fifty feet of the crossing; and where the public authorities never required the establishment of a gate, station agent, or flagman, although the crossing had existed for many years ; is insufficient to warrant a finding that the railroad corporation was guilty of negligence in omitting to provide there any such safeguard. 6 And if the trains are kept

w Com. v. Blaisdell, 107 Mass. 234. z Elkins v. State, 2 Humph. 543. 2 Com. v. Boston, 97 Mass. 555. a Com. v. Erie & N. E. R. R. 27

y Com. v. Alburger, 1 Whart. 469; Pa. St. 239. Ante, $ 2376. Com. v. Tucker, 2 Pick. 44. Ante, s b Com. v. Boston & Worcester R. 2367.

R. 101 Mass. 201 (Gray, J., 1869).

closely within the range of the charter, no indictment can be maintained against the corporation for a nuisance caused by alarm to horses and passengers produced by the locomotives. c

6. Obstructing Navigable River. § 2419. It is a nuisance, on the same principle, to obstruct the passage of a navigable river by bridges or otherwise, d and to divert a part of such stream, whereby the current of it is weakened, and rendered incapable of carrying vessels of the same burden as it would before. e But if a ship or other vessel sink by accident in a river, although it obstruct the navigation, yet the owner is not indictable, as for a nuisance, for not removing it. f And it is also to be kept in mind, that the owner of the soil between high and low water mark may use the soil for his own private purposes, provided he do not interfere with the navigation of the river. f 1

7. Collateral Benefit no Defence. $ 2420. It was once thought that a collateral benefit to the community could be set up as a defence. Thus upon the trial of an indictment for a nuisance in a navigable river, by erecting staiths there, for loading ships with coals, the jury were directed to acquit the defendant, if they thought the abridgment of the right of passage, occasioned by these staiths, was for a public purpose, and occasioned a public benefit, and if the erection were in a reasonable situation, and a reasonable space was left for the passage of vessels on the river; and the judge pointed out to the jury that, by reason of the staiths, the coals were supplied better and at a cheaper rate than they otherwise could be, which was a public benefit; it was holden that this direction was right.g This case, however, was overruled afterwards, in England, h and the later position, that no countervailing benefit can be a defence, has been followed in this country. i

c R. v. Pease, 4 B. & Ad. 30; ante, & C. 566; R. v. Ward, 4 Ad. & E. $ 2376.

384 ; R. v. Tindall, 6 Ad. & E. 143; d Penns. v. Wheeling, 13 How. U. R. v. Morris, 1 B. & Ad. 441. S. 518; Com. v. Church, 1 Barr, 105 ; fi Zug v. Com. 70 Penn. St. (20 State v. Dibble, 4 Jones (Law) N. C. P. F. Smith) 138. 107; State v. Freeport, 43 Maine, 198. g R. v. Russell, 9 D. & R. 566, Ten

e i Hawk. c. 75, s. 11; R. v. Stan- terden, C. J., dissentiente; 6 B. & C. ton, 2 Show. 30.

566. f R. v. Watts, 2 Esp. 675. See R. h R. v. Ward, 4 Ad. & E. 384. v. Russell et al. 9 D. & R. 566; 6 B.

Not necessary that tide should flow. - Rivers in North America (in this respect being distinguished from those in England) do not cease to be navigable from the fact that they are at certain points broken by rapids or cataracts, which have at such points to be avoided by portages. Hence, the English rule as to ebb and flow of tides does not apply to the unimpeded parts of such rivers. il But a creek which cannot even under spring freshets float timber, cannot claim to be navigable. 22

8. Obstructing Fish. § 2421. The provincial statute of 8 Anne, chap. 3, for preventing obstructions to fish in rivers, is still in force in Massachusetts ; and as it declares all obstructions therein mentioned common nuisances, an indictment will lie; the special remedy provided by that statute being merely cumulative. j A seine or net, not placed permanently, is not within the act. k

An indictment at common law does not lie for obstructing the passage of fish by a dam across an unnavigable river.2 But such a mill-dam becomes a nuisance when it obstructs the water to such an extent that it overflows its banks and the surrounding country, and stagnates, whereby the air along the highways and around the dwellings is infected with noxious and unwholesome vapors, and the health of the surrounding country is sensibly impaired. m

i Caldwell's case, 1 Dallas, 150; wantonly, without color of right, obRowe v. Titus, 1 Allen (New Bruns- struct the water of any mill-pond, wick), 326. See ante, $ 2368. reservoir, canal, or trench, from flow

il R. o. Meyers, 3 Up. Can. C. P. ing out of the same, shall be punished 347.

by imprisonment in the state prison, i2 Whelan v. McLachlan, 16 Up. not more than five years, or by fine Can. C. P. 102.

not exceeding five hundred dollars, ; Com. v. Ruggles, 10 Massachu- and imprisonment in the county jail, setts, 391.

not more than two years." May 15, k The following statute was passed 1857. Supplement to Revised Statin Massachusetts in 1857: –

utes, 1857, chapter clx. p. 410. " Penalty for Wilful Obstruction of I Com. v. Chapin, 5 Pick. 199. Flow of Water of Mill-ponds, &c. m Douglas v. State, 4 Wisconsin, Every person who shall wilfully or

718

387.

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