If an indictment is brought at common law for a forcible entry, it is only necessary to state the bare possession of the prosecutor; but in such case no restitution follows the conviction. (z)

A mere trespass will not support an indictment for forcible entry. There must be such force, or show of force, as is calculated to prevent resistance. (a) But where the defendant, and persons with him, having entered a dwelling-house through an open door, and one of the persons having been seen to push out the windows, the defendant himself taking them off the hinges, it was held that a conviction for forcible entry should not be disturbed. (b)

A wife may be guilty of a forcible entry into the dwellinghouse of her husband, and other persons also, if they assist her in the force, although her entry, in itself, is lawful. (c)

Nuisances. A nuisance is an injury to land not amounting to a trespass. Nuisances are of two kinds, namely, public or common, and private. (d)

To constitute a public nuisance, the thing complained of must be such as, in its nature or its consequences, is a nuisance, and an injury or damage to all persons who come within the sphere of its operation, though it may be in greater or less degree. (e)

Throwing noxious matter into navigable waters is a public nuisance, and the person guilty thereof is liable to an indictment for committing a public nuisance, or to a private action, at the suit of any individual distinctly and peculiarly injured. (ƒ) So obstructions to navigable rivers are public nuisances. (g) The collection of a crowd of noisy and disorderly people, to the annoyance of the neighborhood, or outside grounds, in which entertainments, with music and fireworks, are given

(2) Rex v. McKreavy, 5 U. C. Q. B. O. S. 629, per Sherwood, J. (a) Rex v. Smyth, 1 M. & Rob. 155; 5 C. & P. 201.

(b) Reg. v. Martin, 10 L. C. R. 435.

(c) Rex v.

Smyth, 1 M. & Rob. 155; Arch. Cr. Pldg. 849.

(d) Little v. Ince, 3 U. C. C. P. 545, per Macaulay, C. J.

(e) Ibid.; Reg. v. Meyers, 3 U. C. C. P. 333, per Macaulay, C. J. (f) Watson v. City of Toronto Gas and Water Co., 4 U. C. Q. B. 158. (g) Brown and Gugy, 14 L. C. R. 213.

for profit, is a nuisance, for which the giver of the entertainment is liable to an injunction, even although he has excluded all improper characters from the grounds, and the amusements within the grounds have been conducted in an orderly way, to the satisfaction of the police. (h)

It seems that a person who is annoyed by the noise of horses kicking in a stable contiguous to his dwelling, and by the stench from the manure, etc., cannot maintain an indictment to remove it. (¿)

All disorderly houses are public nuisances, and their keepers may be indicted. (j) And a house to which men and women resort for the purpose of prostitution, even where no indecency or disorderly conduct is perceptible from the exterior, is a disorderly house. (k)

In general all open lewdness, grossly scandalous, is indictable at common law, and it appears to be an established principle that whatever openly outrages decency, and is injurious to public morals, is a misdemeanor. (7)

The prisoners were convicted of indecently exposing their persons in a urinal, open to the public, which stood on a public footpath in Hyde Park, and the entrance to which was from the footpath: it was held that the jury might well find the urinal to be a public place, and that, therefore, the conviction was good. (m)

And an indictment charging the prisoner with keeping a booth for the purpose of showing an indecent exhibition, and in another count with showing for gain an indecent exhibition, and in a third for showing an indecent exhibition in a public place, was held to show sufficiently an indictable offence. (n)

By the 10 & 11 Wm. III., c. 17, all lotteries are declared to be public nuisances. (0) Where, therefore, one hundred and

(h) Walker v. Brewster, L. R. 5 Eq. 25.

(i) Lawrason v. Paul, 11 U. C. Q. B. 537, per Robinson, C. J.

(j) Russ. Cr. 442.

(k) Reg. v. Rice, L. R. 1 C. C. R. 21; 35 L. J. (M. C.) 93.

(1) Russ. Cr. 449.

(m) Reg. v. Harris, L. R. 1 C. C. R. 282.

(n) Reg. v. Saunders, L. R. 1 Q. B. D. 15.

(0) Cronyn v. Widder, 16 U. C. Q. B, 361, per Robinson, C. J.

forty-nine lots of land were sold by lottery, the person getting No. 1 ticket to have the first choice, it was held that this was a lottery, though it did not appear there was any difference in the value of the lots. The lottery consisted in having a choice of the lots, and that choice was to be determined by chance. (p) A sale of land by lot, in which there are two prizes, comes within the Imp. stat. 12 Geo. II., c. 28. (g)

So the non-repair of a highway, or the obstruction thereof, is a nuisance, indictable at common law. (r)

The proper remedy for a public nuisance is by indictment. And where an obstruction of a navigable river is an injury common to all the Queen's subjects who have occasion to use the stream, and is, consequently, a public nuisance, a person sustaining no actual particular damage cannot maintain an action therefor, but the proper remedy is by indictment. (s)

An indictment is the proper remedy in all cases, except when a charter, which is assumed to be a contract between the parties obtaining it and the public that the road will be constructed, and has been obtained to construct the road, and the work has never been done, in which latter case the proper remedy is mandamus.

The circumstance that the thing complained of furnishes, on the whole, a greater convenience to the public than it takes away, is no answer to an indictment for a nuisance. (t) As to highways, the test, irrespective of the balancing of the advantages against the impediments, is, whether the obstruction is prejudicial to the public to a degree amounting to a nuisance in fact, that is, directly, however beneficial collaterally. (u) Though a nuisance is erected before any person comes to live on or near the place, this does not prevent them complaining of it, on afterwards coming there. (v)

(p) Power v. Canniff, 18 U. C. Q. B. 403.

(q) Marshall v. Platt, 8 U. C. C. P. 189.

(r) Reg, v. Corporation of Paris, 12 U. C. C. P. 450, per Draper, C. J. (8) Small v. G. T. R. Co., 15 U. C. Q. B. 283.

(t) Reg. v. Bruce, 10 L. C. R. 117; Reg. v. Meyers, 3 U. C. C. P. 323, per Macaulay, C. J.; Reg. v. Ward, 4 A. & E. 384; 6 Nev. & M. 38.

(u) Reg. v. Meyers, 3 U. C. C. P. 323, per Macaulay, C. J.; and see Rowe v. Titus, 1 Allen, 326.

(v) Reg. v. Brewster, 8 U. C. C. P. 208.

In addition to the remedy by indictment, a nuisance may, in certain cases, be abated by the parties affected thereby, and this whether the nuisance is public or private, and though on the soil of another. (w) But a private individual cannot abate a public nuisance, unless by reason of some special inconvenience or prejudice to himself, or an occasion to require and justify it. (2) A boom stretched across a floatable stream or river, in a place having relation to public lands, is a public nuisance, and as such, may be abated by any person, notwithstanding Con. Stats. Can., c. 23, s. 13, for the latter only respects booms having reference to public lands. (y)

Where the defendant neglects to abate the nuisance, the court will compel its abatement through the sheriff. An indictment had been preferred against the defendant, in a previous term, for a public nuisance, and judgment obtained ordering its abatement, and the court, on an affidavit that the nuisance had not been abated, made a rule absolute for a precept to the sheriff to abate it. (z) But an order requiring the sheriff to do more than is necessary to abate, for example, to destroy, and not simply remove gunpowder improperly kept on the defendant's premises, is bad. (a)

A party is liable to fresh actions for continuing a nuisance. (b) And it may be generally stated that when a person is liable to an action for a nuisance, he may also be indicted. (c)

There seems to be no authority for a justice convicting a party summarily of a nuisance, and fining for the offence. (d) And a conviction by a magistrate for obstructing a highway,

(w) Little v. Ince, 3 U. C. C. P. 545, per Macaulay, C. J.

(x) Ibid. 545, per Macaulay, C. J.; and see Dimes v. Petley, 15 Q. B. 276; Reg. v. Meyers, supra, 333, per Macaulay, C. J.

(y) Reg. v. Patton, 13 L. C. R. 311.

(z) Reg. v. Hendry, 1 James, 105.

(a) Reg. v. Dunlop, 11 L. C. J. 186.

(b) Drew v. Baby, 6 U. C. Q. B. O. S. 240, per Robinson, C. J.

(c) Rex v. Pedley, 1 A. & E. 822; Reg. v. Stephens, L. R. 1 Q. B. 702;

35 L. J. (Q. B.) 251,

(d) Bross v. Huber, 18 U. C. Q. B. 286, per Robinson. C. J.

and order to pay a continuing fine until the removal of such obstruction, was held bad, as unwarranted by any Act of Parliament. (e)

Twenty years' user will not legitimate a public nuisance. (f) The maxim that no length of time will legalize such nuisance generally holds; (g) but as applied to a ques-. tion of dedication, equivocal in itself, after a lapse of thirty years, without any public enjoyment, before or after suit, it forms a proper subject to be taken into consideration. (h)

Highways exist both by land and water. In Ontario, those by land have accrued to the public by dedication of the Crown, in what is commonly termed allowances for roads in the original survey of towns and townships; or by dedication of private individuals, or under the provisions of the statute law, or by usurpation and long enjoyment. Upon land, therefore, highways are established only by some positive act, indicating the object and its accomplishment. They are, it may be said, artificially made, or only become such by acts in pais. It is otherwise with navigable rivers and watercourses. They are natural highways, pre-existing and coeval with the first occupancy of the soil, and formed, practically, the first or original highways, in point of actual use. (i)

Where the existence of certain streets as public highways was shown by the work on the ground at the original survey by the Crown, and by the adoption, on the part of the Crown, of that work as exhibited on the plan thereof returned, which adoption was established by the disposition of lands according to that plan and survey: it was held that these streets thereby became public highways; and although, prior to such adoption, the Crown would not have been bound by either plan or survey, after such adoption, it was. (j)

(e) Reg. v. Huber, 15 U. C. Q. B. 589.

(f) Reg. v. Brewster, 8 U. C. C. P. 208.

(g) Reg. v. Cross, 3 Camp. 227; 4 Bing. N. C. 183.

(h) Rex v. Allan, 2 U. C. Q. B. O. S. 105, per Macaulay, C. J.

(i) Reg. v. Meyers, 3 U. C. C. P. 352, per Macaulay, C. J.

(j) Reg. v. Hunt, 17 U. C. C. P. 443, (in E. & A.)