and still are very offensive, and the waters became and are corrupted; and by means whereof divers nauseous, unwholesome, and deleterious smells and stenches did arise, etc., so that the air was and still is corrupted and infected, to the great damage and common nuisance of the good and worthy citizens of this state there passing and repassing, dwelling and inhabiting, etc., and against, etc. (Conclude as in book 1, chapter 3.)

(702) Obstruction of fish in the river Susquehanna, under the act of 9th March, 1771.(e)

That on, etc., at, etc., A., etc., did erect, build, set up, repair, and maintain, and did assist and abet in erecting, building, setting up, repairing, and maintaining a certain mound, made of logs and stones, of the height of seven feet and length of eighteen yards, commonly called a fishing battery or wharf, in the river Susquehanna, in that part thereof declared to be a public highway, to wit, between Burkholder's island and the eastern shore of the said river, in the said township and county, for the taking of fish in the said river; and the said mound, made and erected as aforesaid, from the said, etc., until the day of taking this inquisition, with like force and arms, at the township aforesaid, have kept up and still do keep up, to the great obstruction and hinderance of the fish, fry, and spawn in passing up and down said river, and to the common nuisance of all the liege citizens of this commonwealth, contrary, etc. (Conclude as in book 1, chapter 3.)

(703) For obstructing a harbor by erecting in it piles, etc.(ƒ)

That before the committing, etc., to wit, from time whereof, etc., hitherto there has been and was and still is a certain ancient port and harbor, commonly called the harbor of Scarborough, in the county of York, to wit, at Scarborough, within the said county, used by the liege, etc., for the purposes of safe and commodious navigation, for the importation and exportation

(e) Werfel v. Com., 5 Binn. 65. The indictment was held to set forth properly the offence created by the fourth section of the act of 9th March, 1771. (f) R. v. Tindall, 6 A. & E. 143. A special verdict was rendered on which a verdict of guilty was entered. There seems to have been no doubt, however, that the facts set forth in the indictment formed a criminal offence. Wh. Cr. L. 8th ed. §§ 1416, 1417.

of goods, and for the receiving and sheltering, in times of tempests and other times of danger and distress of weather, ships and vessels navigating to and along the northern coasts of that part of the United Kingdom called England, and to and from the eastern seas and other places; that the defendants, well knowing, etc., on, etc., and on divers other days and times between that day and the day of the taking of this inquisition, to wit, on each and every day between, etc., with force, etc., within the said county of Y., to wit, at, etc., unlawfully, wilfully, and injuriously did erect, place, fix, put, sink, and set in the said port and harbor, and in the sea near to the shore with the said port and harbor, divers stages, erections, and buildings projecting into the said port and harbor, composed of piles, posts, planks, and timbers, and also divers large quantities of earth, stones, sand, and rubbish, to wit, one hundred thousand cart loads of, etc.; and unlawfully and injuriously kept and continued, and caused and procured to be kept and continued, the said stages, etc., so projecting into the said port and harbor as aforesaid, and the said piles, etc., so erected, etc., in the said port and harbor, and in the sea near to the shore in the said port and harbor, for a long space of time, to wit, from thence hitherto within the county aforesaid, to wit, at, etc. ; and thereby, during the time aforesaid, greatly obstructed, choked up, narrowed, and otherwise injured the said port and harbor, and rendered the same insecure and incommodious, whereby the said port and harbor then and there became and was, and from thence hath been and still is greatly obstructed and choked up, narrowed, and rendered insecure and incommodious, so that the good people of said state could not, nor yet can use the said port and harbor for the exportation and importation of goods and merchandises there, and for the receiving and sheltering of ships and vessels in times of tempests and other times of danger and distress of weather, and for other purposes of safe and commodious navigation, and could not and cannot use the said port and harbor without imminent hazard and danger of destruction of their ships, lighters, boats, and other vessels, and danger and peril of the lives of those navigating the same, and loss and damage of the goods and merchandises laden on board thereof, to the great damage and common nuisance, etc., and other persons using the said port

and harbor as aforesaid, against, etc. (Conclude as in book 1, chapter 3.)

(704) For negligently permitting fence to remain, during the crop season, less than five feet high, under the North Carolina statute.(g)

That N. B., late of, etc., on, etc., and continually before and after that time, during the crop season of the year, then and there being the occupier and cultivator of a farm as owner of the same, and being bound during the said crop season to keep up his fences around his cultivated fields five feet high, unlawfully, wilfully, and negligently did permit his said fences around his said fields to be and remain, during crop season of the year aforesaid, less than five feet high, there being no navigable stream nor deep watercourse around the same, to the common nuisance, etc., contrary, etc., and against, etc. (Conclude as in book 1, chapter 3.)

UNWHOLESOME SMELLS, ETC.

(705) General form for nuisances in carrying on unwholesome occupations near to habitations or public ways.(h)

That A. B., late of, etc., yeoman, etc., and on divers days and times between that day and the day of the taking of this inquisi

(g) State v. Bell, 3 Iredell, 506.

(h) The features peculiar to these, as well as to all other kinds of nuisances, have been already specified, supra, 674, note. Wh. Cr. L. 8th ed. §§ 1433 et seq. It remains to notice the general character of the offences themselves. Any trade, however innocent in itself, and useful in its objects, will be a nuisance if carried on in an improper place to the injury of the health or quiet of a neighborhood. Wh. Cr. L. 8th ed. § 705; Lansing v. Smith, 8 Cow. 146. And if, as in the case of stench produced in a manufacture, the effect be not to render the adjacent places of residence absolutely unwholesome, but to make the comfortable enjoyment of life and property impossible to a number of persons, the same liability will be incurred. R. v. White and Ward, 1 Burr. R. 333; R. v. Davy, 5 Esp. 217; R. v. Neil, 2 C. & P. 485; People v. Cunningham, 1 Denio, 524; Com. v. Vansyckle, 7 Penn. L. J. 82. It admits of some question, whether, where health is not affected, the public good resulting from an establishment in some respects offensive may be taken into consideration by the jury in determining whether, on the whole, it ought to be suppressed as a nuisance to the public. See 1 Russ. on Crimes, 297. In a modern case of much consideration (R. v. Ward, 4 A. & E. 384), it was held to be no answer to an indictment for a nuisance in a harbor by erecting an embankment, that although the work was in some degree a hinderance to navigation, it was advantageous in a greater degree to other uses of the port. R. v. Tindall, 6 A. & E. 143; R v. Morris, 1 B. & Ad. 441. In an early case in Pennsylvania, the defendant, being charged with a nuisance in the erection of

tion, with force and arms, at, etc., in the near neighborhood of divers public streets in the said county, where divers good citizens

a wharf, offered witnesses to prove that the wharf had been beneficial to the public, and therefore not to be regarded as a nuisance; but M'Kean, C. J., said, "this would only amount to matter of opinion, whereas it is on facts the court must proceed; and the necessary facts are already in proof. Besides it would be no justification. The evidence is inadmissible." Caldwell's case, 1 Dall. 150. See also Com. v. Vansyckle, 7 Penn. L. J. 82; Bright. R 69; cited infra; Wh. Cr. L. 8th ed. §§ 26, 1412, 1415. Length of time will not justify a public nuisance under any circumstances, even if twenty years' acquiescence concludes private rights at the beginning of that period, so as to oust all remedy by action. People v. Cunningham, 1 Denio, 524; Elkins v. State, 2 Humph. 543; Mills v. Hall and Richards, 9 Wend. 315; Com. v. Alburger, 1 Whart. 469; Bliss v. Hall, 4 Bing. N. C. 185; Com. v. Tucker, 2 Pick. 44; Elliotson v. Feetham, 2 Bing. N. C. 134; 1 Hawk. b. 1, c. 32, s. 8; Rex v. Cross, 3 Campb. 227; Weld v. Hornby, 7 East, 199; Leeds v. Shakerley, Cr. El. 751. It is true that in R. v. Neville, Peake's C. N. P. 91, Ld. Kenyon said, that in neighborhoods where offensive trades have been borne with for many years, they are not indictable nuisances unless materially increased by a new manufacture. And see R. v. Watts, M. & M. 281. The practical result often is that length of time, accompanied by particular circumstances of public convenience of one kind, opposed to the public inconvenience of another, will sometimes go a great way in making both judges and jurors very unwilling to convict. One case is instanced in R. v. Smith (4 Esp. 111), and another is continually occurring respecting the subject of this precedent; namely, the deposit of dung, fish, sea-weed, and other descriptions of manure for short periods near the places where they are collected, in order to be taken to neighboring fields for the improvement and promotion of agriculture. Large quantities of manure are frequently collected in large cities, and laid in heaps on the banks of canals and navigable rivers, for conveyance by barges and boats. In these and such like instances, the general benefit appears to counterbalance the local inconvenience, especially if the offensive matter remain no longer on each occasion than the necessity of the case requires. But see R. v. Gore (the Pudelock case), 8 D. P. C. 102; and R. v. Pollock and others, Q. B. Trin. 1838, Gas Works in Westminster, referred to by Mr. Starkie. Also R. v. Ward, 4 A. & E. 384; 6 N. & M. 38. It seems, however, that the maxim sic utere tuo ut alienum non laedus, applies as soon as the growth of human habitations near an offensive manufacture makes it injurious to them. See Cooper . Barba, 3 Taunt. 110 (cited 1 B. & Ad. 880); Bliss v. Hall, 5 Scott, 500; Bing. N. C. 183, S. C.; Elliotson v. Feetham, 2 Ib. 134; 2 Scott, 174. See Flight v. Thomas, 10 A. & E. 590; Wh. Cr. L. 8th ed. §§ 1415 et seq.

The open carrying on of scandalous or immoral trades, or keeping indecent brothels, gaming-houses, and disorderly places of resort of any kind, is an indictable nuisance; and in the case of brothels and gaming-houses, subjects the parties offending, in England, to the punishment of hard labor. 7 & 8 Geo. IV. c. 29, s. 4. And these are offences for which a married woman may be indicted, either separately or jointly with her husband; the charge being the criminal management of the house, which the law presumes to be principally in the woman's department. Bla. C. 29; R. v. Williams, 1 Salk. 383. If a person, being only a lodger and having only a single room, makes use of it for the purpose of open and flagrant immorality, so as to annoy the neighbors, the occupier may be indicted for keeping a bawdy-house, as if the whole house was so tenanted. R. v. Pierson, 2 Ld. Raym. 1197; Wh. Cr. L. 8th ed. § 1449. But an indictment cannot be sustained in England against a woman for being a common bawd, and inducing parties to meet and commit fornication; for the bare solicitation of chastity is there not an offence at common law, but punishable in the ecclesiastical courts.

of the said commonwealth are constantly passing and repassing, and of divers dwelling-houses in the said county, inhabited and

Hawk. b. 1, c. 74. In this country, however, from the absence of ecclesiastical courts, the law is otherwise, as not only has the solicitation of chastity been regarded an independent offence (State v. Avery, 7 Conn. 267, but see Wh. Cr. L. 8th ed. §§ 179, 1594, 1618), but all open immorality, whether consisting in public drunkenness or public lasciviousness, is indictable, as we will see, as a nui

sance.

At common law, as will be seen, it is an indictable offence to keep a house of ill-fame for lucre (Jennings v. Com., 17 Pick. 80); or to let a house, knowing it so to be used for the purposes of prostitution (Com. v. Harrington, 3 Pick. 26); though in New York the last point was ruled differently, and it was laid down that to rent a house to a woman of ill-fame, with the intent that it should be kept for purposes of public prostitution, is not an offence punishable by indictment, though it be so kept afterwards. Brockway v. People, 2 Hill, 558. But the doctrine held in the latter case was afterwards somewhat qualified, as it was declared that when it appears that the owner of lands has either erected a nuisance or continued it, or in any way sanctioned its erection or continuance, he is indictable. People v. Townsend, 3 Hill, 479. Owners of reversions are indictable for nuisance created by the occupier's use of premises calculated to create nuisance, if there be privity of contract between them; or where the reversion has been sold, if the former reversioner was liable; as in R. v. Pedley, 1 A. & E. 822; 3 N. & M. 627, a case in which sinks were left in a neglected state. 2 Ld. Raym. 1089; see post, 719; Wh. Cr. L. 8th ed. § 1422. Ground near a highway, within two miles of London, was kept for shooting at targets and at pigeons; in consequence of which numbers of persons assembled outside the ground, and in the fields adjacent, to shoot at those birds which escaped, causing thereby great noise and disturbance, and doing injury with the shots fired. The owner of the shooting ground was indicted for causing and occasioning such persons to assemble near and about his premises, discharging firearms and making a great noise and riot, whereby the king's subjects were disturbed and put in peril; and it was held that he was so indictable, as the acts of such persons were the probable consequences of his keeping a ground for shooting pigeons in such a vicinage, for which he is answerable as if it was his actual object. R. v. Moore, 3 B. & Ad. 184. Drawing together, by whatever means, numbers of disorderly persons, as by rope dancing and gaming houses, etc., cannot but be inconvenient to the neighborhood, and is indictable. Hawk. P. C. b. 1, c. 75, s. 6, 7; Betterton's case, 5 Mod. 142; Skinner, 625.

The making great noises in the night-time (R. v. Smith, 2 Stra. 704); exposing persons infected with contagious or loathsome diseases in public (R. v. Vantandillo, 4 M. & S. 73; see infra, 716); and keeping ferocious animals without proper control (Burn's J., tit. Nuisance, I.), are indictable nuisances.

In indictments in Massachusetts, it is said, it is sufficient to charge the defendant with keeping a "house of ill-fame,' a disorderly house," or "a common gaming-house." Com. v. Pray, 13 Pick. 359; 1 T. R. 754. An indictment charging the defendant with "keeping a disorderly house, and unlawfully procuring, for his lucre and gain, men and women of evil name and fame to frequent it at unlawful times, permitting them there to be and remain drinking, tippling, and misbehaving themselves, to the great damage and common nuisance of all the liege citizens," etc., is sufficient. Com. v. Stewart, 1 S. & R. 342. A verdict finding a defendant “guilty of keeping a disorderly house and disturbing his neighbors," is bad. Hunter v. Com., 2 S. & R. 298 (but see Com. v. Pray, 13 Pick. 359; 1 T. R. 754). And where the defendant was indicted for keeping a disorderly common tippling-house," and the jury found a special verdict that the defendant, on one occasion, kept a house in which

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