town, district, parish or precinct, shall, by any court having cognizance thereof, be adjudged and determined a nuisance, and ordered to be abated, in case the materials of such building, fences or other incumbrances, upon a public sale thereof at auction, shall be insufficient to pay the costs and charges of prosecution and removal; the court from whence the process for removal shall issue, shall and may order the deficient sum to be raised and levied from the goods and chattels of the person or persons who shall be convicted of erecting or continuing the same. Nuisances on public By statute 1785, c. 1, s. 4, all fences or buildings set up and erected on lands, used and improved as public landing places, landing places, or such as may be laid out and appropriated to that use, without lawful permission therefor, shall be esteemed nuisances, and may be abated as such. VI. Of nuisances in rivers. By a provincial statute 1709, no weares, hedges, fishgarths, stakes, kiddles, or other disturbance or incumbrance, shall be set, erected or made, on or across any river, to the stopping, obstructing or straitening of the natural and usual course and passage of the fish, in their seasons, or spring of the year, without the approbation and allowance, first had and obtained, from the general sessions of the peace in the same county; who are authorized and impowered, on application made to them at their sessions, to grant liberty for the same, or to deny it, as they shall see it either to be a public good or damage, and so yearly, from time to time, to be allowed or disallowed, as they shall direct. 3 Vol. Stat. Thomas's Ed. Appendix, p. 166. Obstruction of the course of fish in rivers, by weares, etc. a com mon nuisance. None to be set up the sessions. And all weares, hedges, fish-garths, stakes, kiddles or other incumbrances whatsoever, set up and made, on or without allowance of across any river, to the straitening, obstructing and stopping the natural, common or usual passage of the fish, in the spring, or proper seasons of the year, without approbation or allowance first had and obtained for the Mill-dams protec'ed. 3 Vol. Stat. weares, etc.to obstruct Stat. 1801, c. 16. Ibid. s. 1. Justices authorized to inquire into nui sances. same, in manner as in and by the act is directed; are declared to be a common nuisance, and shall be demolished and pulled down; not to be again repaired or amended. And on complaint made to the general sessions of the peace, or to any two justices of the peace, quorum unus, in their respective counties; a writ shall be granted to the sheriff or constable of the town where the nuisance is done, to cause the party or parties complained of, to be examined; and upon conviction, to remove the same; and to command suitable assistance therefor, at the cost and charge of the person or persons so offending. Provided, that nothing contained in the act shall be construed to extend to the pulling down or demolishing of any mill-dam already made, or that shall be lawfully and orderly made. By an additional act 1727, whosoever shall set up, erect or make any weares, hedges, fish-garths, stakes, kiddles or other incumbrances whatsoever, on or across any river for straitening, obstructing or stopping the natural, usual or common passage of the fish, in the spring, or other proper seasons of the year, without the approbation of the court of general sessions of the peace, shall, for every such offence, forfeit and pay the sum of ten pounds, to be sued for and recovered by plaint, bill or information, in any court of record within the county where the offence is committed; one half thereof to be to him that shall inform and sue for the same, and the other half to the poor of the town or towns where such incumbrances have been made or set up. VII. A summary process, by statute, for the removal of nuisances. This statute provides as follows: 1. Any two justices of the peace, quorum unus, are authorized to inquire, by a jury, as is directed, into all nuisances erected, or which may be erected by any person or persons; and if it be found, upon such inquiry, that a nuisance shall have been erected, created or continued by any person or persons, then, such justices shall cause the same to be abated or removed. Ibid. s. 2. Complaint. Warrant of the justices for a jury. 2. Any person or persons may make out his or their complaint in writing, directed to any two justices of the peace, quorum unus, of any existing nuisance; and they shall, as soon as such complaint is exhibited to them, make out their warrant, under their hands and seals, directed to the sheriff of the same county, commanding him, in behalf of the commonwealth, to cause to come before them twelve good and lawful men of the same county, who shall be drawn, in equal proportions, out of jury-box, for the supreme court, by the selectmen of the three towns next adjoining to the town in which such be drawn.' nuisance may be, at a meeting of such selectmen, to be holden forthwith for that purpose, upon the requisition of such sheriff, and they shall be empowered to inquire into the nuisance complained of. The form of this warrant is prescribed by statute, and may be seen in the appendix. 3. And the said justices shall make out their summons to the party complained against. The form of this summons is also prescribed by statute, and may be seen in the appendix. Which summons shall be served upon the party complained against, by reading the same in his hearing, or by a copy thereof left at his usual place of abode, fourteen days exclusively before the day of trial; and if the party shall not appear to defend, the justices shall proceed to the inquiry in the same manner as if he were present; and when the jury shall appear, the justices shall lay before them the exhibited complaint, and shall administer an oath. How such jury are to See Append. No. 9. Stat. 1801, c. 16, s. 2. Summons to the adverse party. See Append. No. 10. Stat. 1801, c. 16, s. 2. Service of the summons. The form of this oath is prescribed by statute and may See Append. No. 11. be seen in the appendix. 4. And if the jury shall find the complaint to be true, Stat. 1801, c. 16, s. 2. then they shall return their verdict in form, as prescrib- Verdict of the jury. ed by the act. See Append. No. 12. Stat. 1801, c. 16, s. 2. Jurors, de talibus, etc. Ibid. The form of this verdict may also be seen in the ap pendix. 5. And if, by accident or challenge, there should not be a full jury, the sheriff shall fill the pannel, de talibus circumstantibus, as in other causes. 6. And if the jury, after a full hearing of the cause, shall find the complaint laid before them, supported by Verdict to be signed. evidence, they shall all sign their verdict in form afore Costs. Ibid. s. 3. and writ. said; otherwise the defendant shall be allowed his legal 7. If the jury shall return their verdict, signed by the Judgment of removal whole pannel, that the complaint is supported, the justices shall enter up judgment for the complainant to have the nuisance abated and removed, and shall award their writ accordingly. See Append. No. 13. Ibid. The form of this writ is prescribed by statute, and may be seen in the appendix. 8. The party complained against as aforesaid, may, in person or by attorney, appear before the said justices, Respondent may ap- and may there give in evidence, on the trial aforesaid, Under proviso. pear by attorney. His plea. Ibid. Right of appeal. under the general issue, any special matter or thing, of 9. When judgment shall be entered up against him, justices shall be in full force against him; and they are authorized and empowered, in such case, to issue their writ for abatement and removal in the same manner as if no appeal had been entered. Ibid. s. 4. 10. The said supreme judicial court are authorized to take cognizance of said complaint and judgment, and to try, by the jurors returned to serve in the said court, on the Proceedings in the jury of trials, the truth of the facts alleged in said com- appellate court. plaint, under the issue aforesaid; and if the said jury shall find, by their verdict, the facts alleged in said complaint to be true, the said court are further authorized to cause and order the said nuisance to be abated and removed, and to award against the party complained of, such sums as may be necessary to defray the expense of removing said nuisance but if the jury aforesaid, shall find that the facts alleged in said complaint are not supported, the party complained of shall recover against the complainant his legal costs; and execution shall issue accordingly. Costs, 11. The same costs shall be allowed by the said two justices, and the supreme judicial court, to parties and Ibid. s. Ibid. s. 5, witnesses, as are allowed in the regular courts of law; and the said two justices, quorum unus, shall have the same fees, and be allowed the same sums for the trial aforesaid, as are allowed to justices in the process of forcible entry and detainer. 12. The proceedings under the act shall not bar any party from having and maintaining their private actions Ibid. s. 6. for any injury which they may have sustained by reason Action for damages. of the premises. |