said highway), returning, passing, repassing, riding and laboring, &c. (Conclude as in book 1, chap. 3.) dered incapable of carrying vessels of the same burthen as it could before, is a common nuisance; 1 Hawk. c. 75, s. 11. But if a ship or other vessel sink by accident in a river, although it obstructs the navigation, yet the owner is not indictable as for a nuisance for not removing it; R. v. Morris, 1 B. & Ad. 441; R. v. Watts, 2 Esp. 675; R. v. Tindall, 6 A. & E. 143; R. v. Russell and others, 9 D. & R. 561; R. v. Ward, 4 A. & E. 384; 6 B. & C. 566. After conviction, the court may award a fine, or (if the subject matter of the nuisance indicted is of a permanent nature, admitting of abatement), prostration of so much of the thing as makes it a nuisance, or both fine and prostration; but both are not absolutely necessary, for the judgment should be adapted to the nature of the case; R. v. Pappineau, Stra. 686; R. v. Yorkshire, 7 T. R. 467 ; R. v. Stead, 8 ib. 142; 3 Bla. C. 221; and if the obstruction which was indicted is removed, so that the public have free passage again, the judgment will be for a nominal fine; R. v. Incledon, 13 East 164; R. v. White and Ward, 1 Burr. 338. See Wh. C. L. § 2370 and 2402. (What are public ways and bridges.) A cartway (via or aditus), contains a footway (iter), and a pack and prime or horse and footway (actus), and is called regia alta via, because common to all the queen's subjects; Co. Lit. 56, a; Bac. Abr. tit. Highways (A.); but a "pack and prime" way does not contain a carriage way, ib. First, it may be proper to observe that no prosecution in any form can be sustained for the omission to repair any way or bridge. A bridge may be a common highway; Regina v. Sainthill, Ld. Raym. 1174; but county bridges are not within the new highway act, 5 and 6 Wm. IV. c. 50; unless so specially mentioned (ib. s. 5); but such as are public; for the omission to repair a private way, or even its positive obstruction, not being a common nuisance, is only the ground of a civil action. It often, therefore, becomes a question whether the way or bridge in respect of which a prosecution is instituted, is public or private. On this question it is indisputable that all ways, whether for carriages, horses or foot passengers, leading to a market town, or beyond it, or from town to town, are properly called "highways;" Co. Lit. 56, a. It is now held that a road dedicated to and used by the public for twenty-five years becomes a highway, which the parish must repair, though they have neither adopted nor acquiesced in the dedication or the user; R. v. Leake (Inhab.), 5 B. & Ad. 469; 2 N. & M. 583, S. C.; see R. v. Paddington (Vestry), 9 B. & C. 456; R. v. Lyon, 5 D. & R. 497; and four or five years' user as a public road is sufficient to warrant a jury in presuming that it was so used with the full assent and by the dedication of the owners of the soil; Jarvis v. Dean, 3 Bing. 448; Woodger v. Haddon, 5 Taunt. 138. In the latter case, eight years were held sufficient, and no particular time necessary to constitute evidence of dedication. But a way to a private house, or perhaps even to a village, which terminates there, or leads to the common fields of a town, and it is said, even to a parish church, is only a way for a particular class of persons, and therefore not public; Hawk. b. 1, c. 76, s. 1. And Ld. Tenterden, in a well known case, said that "he had great difficulty in conceiving that there can be a public way which is not a thoroughfare, as the public at large cannot well be in the use of it;" Wood v. Veal, 5 B. & Al. 454; and see 5 Taunt. 138, Woodger v. Haddon; both cases of cul de sac; R. v. Limehouse, 2 Shower 455; Drinkwater v. Porter, 7 C. & P. 181. There must be an intention by the owner of the soil to dedicate. Of that intention the use by the public is evidence, but no more. single act of interruption by the owner is of much more weight on a question of intention than many acts of enjoyment; dict. Parke B. in Poole v. Huskinson, 11 M. & W. 830. See Wh. C. L. 2370, &c., 2402, &c. A All bridges built in highways, by whomsoever erected and dedicated to the public, are public bridges; but to constitute a bridge a public bridge, at least where it has not been repaired, or a county bridge, it must be over such water as answers the description of a flumen vel cursus aquæ, that is, water flowing in a channel between banks more or less defined, although such a channel may be occasionally dry; 2 Inst. 701; R. v. Oxfordshire (Inhab.), 1 B. & Ad. 289; (as stated in Patteson J., in R. v. Whitney (Inhab.), 3 A. & E. 72); also restated per cur. 1 B. and Ad. 289. And a raised causeway forming an approach to a bridge, but at more than three hundred feet from it, and pierced with arches and culverts to suffer water to pass under, when the meadows over which it was carried were flooded, is not such a bridge as the county is bound to repair; R. v. Oxfordshire (Inhab.). But the Queen's Bench has since denied that R. v. Oxfordshire proves any rule of law to exist for prohibiting, under all or any circumstances, every part of a structure from being treated as a bridge, because water does not at all times flow under that part; for to confine the roads, flumen vel cursus aquæ, to a constant stream or course of water, flowing at all times to the exclusion of flood-waters, whether rarely or often occurring, (675) For erecting a gate across a public highway. (c) [For non-repairing roads, see post, 781, n.] That at the time of committing the nuisance hereinafter mentioned, there was and yet is a certain ancient common highway in the Parish of M., in the County of N., leading from, &c., into, through and over a certain public(d) highway, called the great north road, and from thence to, &c., in the Parish of B., in the said county, for all the good people of said state to go, return and pass on foot and on horseback, at their free will and pleasure, and that on, &c., A. B., late of, &c., with force and arms, at a certain place there in the Parish of aforesaid, contiguous to and on the east side of the great north road aforesaid, unlawfully and injuriously did erect and cause to be erected a certain wooden gate, of the length of fifteen feet and of the height of four feet, upon and across the said highway, leading from the place called, &c., to the great north road aforesaid; and that the said A. B., the said wooden gate so as aforesaid erected and made from the said, &c., until the day of the taking this inquisition, with force and arms, at, &c., aforesaid, unlawfully and injuriously did continue locked and fastened with an iron chain, and yet doth continue, by which the common highway last aforesaid, during all the time aforesaid, was so obstructed and stopped up that the good people of said state in, by and through the same highway could not, nor yet can go, return and pass on foot and on horseback so freely as they ought and were wont to do; to the great damage and common nuisance(e) of all the good citizens of the said state going, returning, passing and repassing in, does not consist with R. v. Trafford, 1 B. & Ad. 874, 887, affirmed quoad hoc in error, 2 Tyr. 201; 8 Bing. 204; 2 C. & J. 265; where it was held unlawful to obstruct the accustomed course of flood-waters flowing only occasionally. At any rate, where the arches were twenty-nine in number, contiguous to, and as it were, in immediate continuation of an acknowledged county bridge, which extended from one end of them over the river Trent by five arches, and from the other over a brook by eight arches, and had been always immemorially, R. v. Derbyshire (Inhab.), 2 Q. B. 745, repaired by the county as part of that bridge; it was held that no rule of law prevented the whole structure from being taken to be one county bridge. The river Trent constantly flowed under all five arches, and the brook under one of the eight, while under most of the other twenty-nine were pools of stagnant water at all times, and under all of them the water of Trent flowed in flood time; ib. The court intimated that a structure of arches made to carry a highway in such a manner as to permit flood-waters to flow in their accustomed course, should be treated as a bridge, though at ordinary times there may be no waters passing under the arches. Where a bridge consists of more than one arch, the whole must be indicted as one bridge; nor can each arch be there treated as a separate bridge; R. v. Oxfordshire (Inhab.), 1 B. & Ad. 289, as stated per curiam, 2 Q. B. 755. A want of parapets will not prevent a structure from being a bridge, or make it a culvert only; nor will the mere fact of an arch spanning a stream necessarily make it a bridge; see per Ld. Denman, in R. v. Whitney (Inhab), 3 A. & E. 71 ; and Bridge's case, Godbolt's R. 346, pl. 441; stated 1 B. & Ad. 301, note. If a bridge be used by the public only in time of flood, and be shut at other times, it will only be public for such purpose, and at such a period; R. v. Northamptonshire (Inhab.), 2 M. & S. 262; R. v. Buckingham (Marquis), 4 Campb. 189; but though the purpose for which the dedication takes place, may be limited, there can be no dedication to a limited part of the public; dict. Parke B., 11 M. & W. 830; Poole v. Huskinson; Dickinson's Q. S. 396. See Wh. C. L. n. § 2370-2402. (c) Dickinsin's Q. S. 6th ed. 417. (d) So in Regina v. Stratford (Inhab ), 3 Ld. Raym. 40; in error; Dickinson's Q. S. 6th ed. 417. (e) Every indictment and presentment, whether for nuisances, arising from neglect of duty or for encroachments on the public rights, must, in its conclusion, contain the words "to the common nuisance of all the liege subjects of our lady the now queen," residing, passing or using, &c. (according to the facts); 2 Stra. 688; Dickinson's Q. S. 6th ed. 417. See 674, note(b). along and through the said last mentioned highway, to the evil example, &c., and against, &c. (Conclude as in book 1, chap. 3.) (676) For erecting and continuing a house, part of which was on the highway.(f) (Describe the highway as before.) That A. B., late of, &c., with force and arms, at, &c., unlawfully did erect and build, and cause and procure to be erected and built, a certain brick messuage and tenement, containing in length twelve feet and six inches, and in depth at the east end thereof five feet and six inches, and in depth at the west end thereof two feet nine inches, and that the same was erected and built, and caused and procured to be erected and built, by him the said A. B., in and upon the said ancient and common highway at the parish aforesaid, in the county aforesaid, to wit, opposite to a certain dwelling-house of one C. H. there situate, and the said part of the said messuage and tenements so erected and built, and caused and procured to be erected and built, by him the said A. B. as aforesaid, in and upon the said ancient and common highway, at the parish aforesaid in the county aforesaid, he the said A. B. from the said day of in the year aforesaid, until the day of the taking of this inquisition, with force and arms, at the parish aforesaid in the county aforesaid, unlawfully and injuriously did continue and yet doth continue; by reason and means whereof the said ancient and common public highway was, during the time aforesaid, at the parish aforesaid in the county aforesaid, encroached upon, narrowed and straitened, so that the good people of the said state, by and through the said highway could not, nor yet can go, return, &c. (As before.) (677) For obstructing a common highway by placing in it drays.(g) In the county aforesaid, in a certain street, there called Leman street, being a common highway, used for all the good people of the said state, with their horses, coaches, carts and carriages to go, return, pass, repass, ride and labor at their free will and pleasure, unlawfully and injuriously did (put and place three empty drays, and did then and on the said other days and times there, unlawfully and injuriously permit and suffer the said empty drays respectively to be and remain in and upon the common highway aforesaid, for the space of several hours, to wit, for the space of five hours on (ƒ) R. v. Wright, 3 B. & Ad. 681 See form of indictment for erecting and continuing a market stall in a public highway; R. v. Starkey, 7 A. & E. 95. Indictment lies against even the tenant at will of a house, which, standing on the highway, is ruinous and like to fall down, for, as the danger is what concerns the public, they have a remedy against the occupier in respect of his occupation; Reg. v. Watts, 1 Salk. 357, S. C. Ld. Raym. 856; Rym. Ent. 25; see other cases, Burns' Justice, tit. Highways, s. vi. 4 (cited 9 B. & C. 730); see R. v. Hollis, 2 Stark. C. N. P. 536, post. An increased general facility in communicating with a seaport, and particularly in the conveying coals there, will not justify narrowing the highway by laying down a railway along side of it; R. v. Morris, 1 B. & Ad. 441. As to the neighborhood of railways, annoying old roads by smoke, see R. v. Peese, 4. B. & Ad. 30; R. v. Gregory, 5 ib. 555; 2 N. & M. 478; 2 Tyr. R. 201, S. C. in error. See note to 674, as to the learning generally on this point. (g) Archbold's C. P. 5th Am. ed. 756. See precedents of obstructing a highway by continuing a hedge across it; C. Cir. Com. 307; by erecting a gate across it; 6 Went. 401, 405; Reg. v. Bosfield, 1 C. & M. 151; by building or continuing a building upon it; 4 Went. 181, 191; 1 A. & E. 822; by placing carts upon it for the sale of vegetables; C. Cir. Com. 305; by laying soil upon it; C. Cir. Com. 303; by laying rubbish upon it; C. Cir. Com. 315; by digging holes in it; C. Cir. Com. 303, 314; by digging a horse-pond and erecting a cistern in it; C. Cir. Com. 304; by stopping a watercourse and thereby overflowing the highway; C. Cir. Com. 376; by exhibiting effigies at a window and thereby attracting a crowd; R. v. Carlisle, C. C. & P. 637. each of the said days); whereby the common highway aforesaid, then and on the said other days and times, for and during all the time aforesaid, on each of the said days respectively, was obstructed and straitened, so that the good people of the said state could not then and on the said other days and times, go, return, pass, repass, ride and labor with their horses, coaches, carts and other carriages, in, through and along the common highway aforesaid, as they ought and were wont and accustomed to do; to the great damage and common nuisance of all the people of the said state going, returning, passing, repassing, riding and laboring in, through and along the common highway aforesaid, to the evil example, &c., and against, &c. (Conclude as in book 1, chap. 3.) (678) Same with filth, &c. That A. B., of Boston aforesaid, yeoman, on, &c., at, &c., a certain common and public nuisance in and upon the land and tenement of him the said A. B. situated at, &c., near to certain public passage-ways, to wit, certain passage-ways called and known by the name of did cause, create, suffer and maintain, by then and there causing and suffering great quantities of offensive and stinking filth, water and substances, solid and liquid, to collect, stagnate, ferment and be mixed together in and upon his land and tenement aforesaid, and from his said land and tenement to flow, descend and be removed to and upon certain open and exposed places and yards, upon, in and near the same land and tenement and to and upon certain public passages near thereunto, to wit, certain passage-ways called and known by the name of and from said offensive and stinking substances, water and filth did cause, suffer and permit divers noxious, offensive, deleterious, unwholesome and unhealthy vapors, exhalations and smells, to arise and then and there to contaminate, poison and destroy the air and atmosphere above, around and near the same tenements and lands, and in and upon and over said passage-ways, to wit, the passage-ways called over which the good citizens of said commonwealth in great numbers pass and repass every day, to wit, to the number of three hundred passengers daily, and near which many citizens inhabit, live and work, to the great damage and injury of said passengers and all other persons there being, residing and passing, to the great hazard of their health, comfort and lives, and to the common nuisance of all of said passengers, persons and citizens, and of all the citizens of said commonwealth there being, and against, &c. (Conclude as in book 1, chap. 3.) (679) For letting off fire-works in the public street. (h) That A. B., late of, &c., on, &c., at, &c., in a certain common and public street and highway there for all the good people of the said state, on foot and with their horses, carts and carriages to go, return, ride, pass and repass and labor, at their free will and pleasure, wrongfully, unlawfully and injuriously did fire certain fire-works called rockets, serpents and Roman candles, whereby the said public street and common highway was then and there greatly obstructed, and divers good citizens of the said state then and there standing, (h) Dickinson's Q. S. 6th ed. 421. 9 and 10 Wm. III. c. 7, provides by s. 2 and 3, specific penalties for this offence, to be levied by distress after summary conviction by a justice; yet by the first section, the offence is declared to become a common nuisance; therefore it may be indicted as such, either at common law or under the statute; R. v. Harris, 4 T. R. 202; 1 Saund, 135, n. (4). The making, selling, throwing or permitting to be thrown from any house, making or selling any moulds for making, or aiding in making any fire-works, are all declared to be offences by the different sections of the statute. being, passing and repassing in and along the said last mentioned public street and common highway, were then and there greatly terrified and put in great peril and danger of bodily harm, and could not then go, return, pass and repass, on foot and with their horses, coaches, carts and carriages, in and along the said last mentioned public street and common highway, as they ought to have done, and had been used and accustomed to do, and otherwise might and would have done; to the great terror, alarm, danger and common nuisance of all the good people of the said state in and near the said public street and highway inhabiting and residing, and of all others the good people of the said state there standing, being and passing, in contempt of the said state and their laws, to the evil example, &c., against, &c., and against, &c. (Conclude as in book 1, chap. 3.) (680) For keeping a pond of stagnant water in a city. That J. P., I. Z. & H. H., all late of, &c., gentlemen, on, &c., and at divers days and times between that day and the day of the taking of this inquisition, with force and arms, &c., at the city aforesaid and within the jurisdiction of this court, then and there unlawfully and knowingly did keep and permit to be and remain, in and upon a certain lot or piece of ground to them the said J., I. and H. belonging, and in their possession then and there being, situate near and adjoining the public streets in the said city, to wit, Mulberry Street and Eighth Street, a certain pond of putrid, filthy, noxious and stagnant water one hundred yards in circumference, by and from which divers hurtful, pernicious and unwholesome smells on the day and during the time aforesaid did and doth arise, and the air there was and yet is thereby greatly corrupted and infected, to the great damage and common nuisance, not only of all the subjects of this commonwealth there resident and dwelling, but also of all the subjects of this commonwealth passing and repassing, &c. (681) For placing a quantity of foul liquor called “returns,” in the highway.(i) day of That A. B., the in the year, &c., at the county aforesaid and within the jurisdiction of this court, did discharge out of the still-house of him the said A. B., lying and being in the county aforesaid, into the road, &c., a quantity of foul and nauseous liquor called "returns," to the great damage and common nuisance of all the good citizens of this commonwealth, and against, &c. (Conclude as in book 1, chap. 3.) (682) For laying dung near a public street, whereby the air was infected and inhabitants annoyed. (j) That A. B., late of, &c., on, &c., and on divers other days and times between that day and the day of the taking of this inquisition, with force and arms at, &c., aforesaid, to wit, in a certain common and public highway there, called B.'s wharf, unlawfully and injuriously did put, place and leave, and caused and procured to be put, placed and left, divers large quantities of dung and filth, whereby divers noxious and unwholesome smells from the said dung and filth did then and there arise, and thereby the air there became and was greatly corrupted and infected; to the great damage and common nuisance not only of all the good people of the said state, inhabiting and residing near the place where the said dung and filth was so put, placed and left as aforesaid, but also of all other good people of the said state in, by and (i) Drawn by William Bradford, Esq. |