through the said highway, and near the place aforesaid, going, returning, passing and repassing, and against, &c. (Conclude as in book 1, chap. 3.) (683) For letting wagons stand in the public street, so as to incommode passengers.(k) That A. B., late of, &c., before and at the times hereafter mentioned, was and still is a proprietor of divers wagons for conveyance for hire of goods and merchandise to and from E., and being such proprietor, he the said A. B., on, &c., and on divers other days and times between that day and the day of in the year aforesaid, in the Parish of in the county aforesaid, without just cause or excuse, but wrongfully and unjustly did cause and permit divers, to wit, twenty wagons to stand and remain for a long time, to wit, ten hours on each day, before his warehouse, situate in a public street and highway called in the parish aforesaid, in the county aforesaid, and divers cumbrous and other parcels which had been conveyed or were intended to be conveyed in such wagons, to lie during such time, scattered about such public street; to the common nuisance, great hinderance, impediment, and annoyance of all the good people of the said state, passing and repassing such streets, &c. Second count. (That the defendant permitted divers wagons to stand in the public street and highway, and there to remain before his warehouse for a long and unreasonable time, by which the people of the said state were, during that time, much impeded and obstructed, &c.) (684) For placing casks in the highway. That A. B., late, &c., on, &c., at &c., with force and arms, &c., in and upon a certain road and highway called in the township and county, &c., the said road then being a common road and highway for all the citizens of this commonwealth to go, pass, and travel, at their will, with their horses, carts, and carriages, ten wooden casks unlawfully and injuriously did put, place, and cause to be put and placed, and that the said ten wooden casks, by the said J. B. in the common road and highway put and placed and caused to be put and placed, from the in the year aforesaid, to the day of in the month and year aforesaid, in the county aforesaid, the said J. B. did voluntarily permit to be and remain. day of By reason whereof the common road and highway aforesaid for all the time aforesaid, at the county aforesaid, was so obstructed that the good citizens of this commonwealth, in and along the said road and highway, about their necessary business, with their horses, carts, and carriages could not go, pass, and travel so freely as of right they ought, to the great damage and common nuisance and hinderance of all the citizens of this commonwealth in and along the said road passing, &c., to the evil example, &c., against, &c. (Conclude as in book 1, chap. 3.) (685) For leaving open an area on foot pavement in a street.(1) (Describe a public way as in 674.) And that A. B., late of, &c., on, &c., with force and arms at, &c., in a certain part of the said common highway and public street, there, to wit, in the foot pavement of the said street, before the dwelling-house of him the said A. B., unlawfully and injuriously did leave open a certain area of the length of and of the breadth of (k) Dickinson's Q. S. 6th ed. 421. (1) Ib. 419. belonging to him the said A. B., without putting or placing, or causing to be put and placed, any rails or other fence to inclose the same; and he the said A. B. from, &c., until, &c., at, &c., the said area so as aforesaid being in the said foot pavement of the said common highway and public street, unlawfully and injuriously did cause, permit and suffer to be, remain, and continue open, by reason and means whereof the good people of the said state, during the time aforesaid, could not, nor yet can go, return, and pass on foot in, by, and through the said common highway and public street, and as they were used and accustomed and were wont and ought to do, without great peril and danger of their lives; to the great damage and common nuisance of all, &c., in, by, and through, &c., going, returning, and passing on foot, and against, &c. (Conclude as in book 1, chap. 3.) (686) For laying dirt in a footway.(m) That P. B., late of, &c., with force and arms at, &c., aforesaid, in a certain common footway there leading from that part of N. green which is in the parish aforesaid in the county aforesaid, towards and unto the parochial church of the same parish in the said county, did unlawfully and injuriously put, place, and lay, and cause to be put, placed, and laid, two cartloads of dirt and other filth in the said footway, from the said, &c., until the day of the taking of this inquisition, at, &c., aforesaid, and the same on, &c., at, &c., unlawfully and injuriously did permit and suffer to be and remain, by reason whereof the footway aforesaid, during the time aforesaid, was and yet is greatly obstructed and straitened, so that the said people of the said state through the same footway could not, during the time aforesaid, nor yet can go, return, pass, repass, and labor as they ought and were wont to do; to the common nuisance and great damage, &c., and against, &c. (Conclude as in book 1, chap. 3.) (687) For keeping a ferocious dog. That A. B., late, &c., on, &c., at, &c., and on divers other days and times, with force and arms, near unto the common highway, and in and near the public streets there unlawfully and knowingly did keep and still doth keep, a certain dog of a ferocious and furious nature, and the said dog, on the day and year aforesaid, and on the said other days and times, at the county aforesaid, near unto the common highway and in and near the public streets, then and there unlawfully and knowingly did permit and suffer, and still doth permit and suffer to go unmuzzled and at large, by reason whereof the good people of this commonwealth, and the citizens of the County of on the day and year aforesaid, and on the said other days and times at the county aforesaid, could not, nor can they now go, return, pass, and labor in and through the said common highway and public streets, without great danger and hazard of being bit, maimed, and torn by the said dog, and losing their lives, to the great damage, terror, and common nuisance of all the people and citizens aforesaid, in, by, and through the said common highway and public streets then going and returning, passing, repassing, and laboring, to the evil example, &c., and against, &c. (Conclude as in book 1, chap. 3.) (688) For profane swearing in a public street. (n) That A. B., being an evil disposed person, &c., did, in the public street (m) Dickinson's Q. S. 6th ed. 420. (n) Taylor C. J.: "It was held, in the case of the State v. Waller, that if the of fence with which the defendant then stood charged, had been laid as a common nuisance, and the jury had so found it, the judgment would have been supported. of Jefferson, profanely curse and swear, and take the name of God in vain, to the evil example, &c., and to the common nuisance of the good citizens of the state, and against, &c. (689) For obstructing townways in Massachusetts, under statutes of 1786, c. 67, s. 7, and 1786, c. 81, s. 6.(0) That A. B. of, &c., laborer, &c., and on divers other days and times between that day and the taking this inquisition, at, &c., with force and arms in and upon a certain townway there legally laid out, accepted and established as a townway in the said town of S. (which way leads and extends from the dwelling-house of G. H. to the dwelling-house of J. K. in the said town of S.), did unlawfully and injuriously put, place and erect a certain fence, in and upon and across the highway aforesaid; and the same fence did then and there unlawfully and injuriously continue and suffer to remain, from the said day of to the day of the finding of this bill; whereby the way aforesaid, for and during the whole time aforesaid, was wholly obstructed, so that the citizens of the commonwealth were prevented from passing and repassing and using the said way, as they have a right and have been wont to do; to the great injury and common nuisance of all the citizens of said commonwealth having occasion to pass, repass and use the way aforesaid, against, &c., and contrary, &c. (Conclude as in book 1, chap. 3.) (690) For blocking up the great square of a town-house in Pennsylvania.(p) That for a long time ago, before and until the time of the obstruction and nuisance hereinafter mentioned, there was, and still of right ought to be a certain common and public highway in the borough of Bedford and county aforesaid, commonly called and well known by the name of the public and great square of said borough, for all good citizens of this commonwealth to go, return, pass, repass and ride and labor on foot and on horseback, and with their cattle and carriages at their free will and pleasure, and that on, &c., a certain house, erection and building made of bricks, mortar and other materials, had been built and erected by certain persons to the jurors aforesaid as yet unknown, which said house, erection and building took in, encroached upon, stopped up and obstructed a certain part of the aforesaid common and public highway called the public and great square of said borough, being in length thirty-nine feet and upwards and in breadth twentyone feet and upwards, whereby the said public and common highway was obstructed and stopped up, so that the good citizens of this commonwealth Drunkenness and profane swearing are placed on the same footing by the act of 1741, c. 30, and where committed in single acts, may be punished summarily by a justice of the peace. But where the acts are repeated, and so public as to become an annoyance and inconvenience to the citizens at large, no reason is perceived why they are not indictable as common nuisances. Several offences are stated in the books as so indictable, though not more troublesome to the public than the one before us. A common scold is indictable as a common nuisance; and with equal, if not stronger reason, I should think, a common, profane swearer may be so considered;" State v. Ellar, 1 Dev. 267, 268. (0) Com. v. Gowen, 7 Mass. 378. This indictment was contested on two grounds: first, that no indictment lies for an obstruction to a townway, which it was urged was distinguishable from a public highway by being merely for the accommodation of the people of the town; and secondly, because the continuance of the nuisance was not averred to be with force and arms. These latter words, however, all the courts have now concurred in treating as superfluous in every case (Wh. C. L. § 403), and the first point was not seriously pressed. The spirit of the ruling in Resp. v. Arnold, 3 Yeates 423, is, that a road to which the public has access, even though it may be technically called a private road, is to be protected from obstruction by indictment. (p) Com. v. Bowman, 3 Barr 203. could not with their cattle and carriages, on foot and on horseback, go, return, pass and repass, ride and labor, at their free will and pleasure, as they had been accustomed to do; and that G. W. B. and J. W. D., late of the said county, yeomen, the said erection and building so as aforesaid built and erected, and as aforesaid taking in, encroaching upon, stopping up and obstructing a certain part of the aforesaid common and public highway, on, &c., and from that time until the day of taking this inquisition with force and arms, at the borough of Bedford in the county aforesaid and within the jurisdiction of this court, unlawfully and injuriously did keep, maintain and continue and still doth keep, maintain and continue, whereby the said common and public highway during the time aforesaid, hath been and yet is obstructed and stopped up, so that the good citizens of this commonwealth during all that time, have been and yet are obstructed and hindered in going and returning, passing and repassing, riding and laboring on foot and on horseback with their cattle and carriages at their free will and pleasure in and along the said common and public highway, as they had been used and accustomed to do; to the great damage and common nuisance of all the good citizens of this commonwealth in and along the said public and common highway going, returning, passing, repassing, riding and laboring on foot and on horseback, and with cattle and carriages, &c. (Conclude as in prior counts.) (691) For erecting a wooden building on public square of a village in Vermont.(g) That A. B., on, &c., with force and arms at, &c., did unlawfully and inju riously, in and upon a certain public square, and in the common highway there, called the public square, situate in the village of St. A., in the County of F., lying east of and adjoining the stage road leading through the village of St. A., put, place and set up, and caused to be put, placed and set up, one large wooden building forty feet and upwards in length, and thirty feet and upwards in breadth; and the said building so as aforesaid put, placed and set up in and upon the aforesaid public square and common highway, he the said C. W., upon and from the said twenty-eighth day of May, A. D. one thousand eight hundred and twenty-eight, till the present time, with force and arms, unlawfully and injuriously hath upheld, maintained and continued, and still doth uphold, maintain and continue, whereby the said public square common highway, on, &c., and during all that time, was and has been greatly obstructed, narrowed and straitened, so that the citizens of this state, in and upon and through said public square and common highway, all that time could not, nor can now go, return, pass and repass as they ought and were accustomed to do; to the great damage and nuisance of all the citizens of this state going and returning, passing and repassing in and upon and through the said public square and common highway, and against, &c. (Conclude as in book 1, chap. 3.) (692) For throwing dirt upon a public lot.(r) and That A. B., late of, &c., yeoman, on, &c., and from that day until the taking of this inquisition, at, &c., with force and arms, &c., unlawfully and. obstinately did place, put and keep, and caused to be placed, put and kept on a certain lot or piece of ground situate, lying and being at the corners of Spruce, Front and Dock streets, in the said city, and near and adjoining to (9) State v. Wilkinson, 2 Verm. 480. (r) This indictment was framed in 1810, by P. A. Browne, Esq., then prosecuting attorney in Philadelphia. the public streets and highways, to wit, Spruce, Front and Dock streets in the said city, and also near the dwelling-houses of divers citizens of this commonwealth, certain large quantities, to wit, one hundred cartloads of the filth, dung, manure, dirt, excrement and scrapings from the surface of the wharves, gutters and streets in the said city, whereupon divers fetid, noisome, hurtful, pernicious and unwholesome smells, on the days and times aforesaid, did and still do arise and proceed, whereby the air there was and still is corrupted,' infetid and infected, and the healths of the liege citizens of this commonwealth there inhabiting, residing and passing, have been and still are endangered and impaired, to the great damage and common nuisance of all citizens of this commonwealth there inhabiting, residing and passing, to the evil example, &c., against, &c. (Conclude as in book 1, chap. 3.) (693) For stopping an ancient watercourse, whereby the water overflowed the adjoining highway and damaged the same.(s) That P. Q., late of, &c., on, &c., with force and arms at, &c., a certain ancient watercourse adjoining to a common public highway, within the same parish, leading from the said town of B. in the county aforesaid, towards and into the city of G., in the County of G. aforesaid, with gravel and other materials, unlawfully and injuriously did obstruct and stop up, and the said watercourse so as aforesaid obstructed and stopped up from, &c., aforesaid, until the day of the taking of this inquisition, at, &c., aforesaid, unlawfully and injuriously did continue, by reason whereof the rain and waters that were wont and ought to flow and pass through the said watercourse, on the same day and year aforesaid, and on divers other days and times afterwards, between that day and the day of the taking of this inquisition, did overflow and remain in the said common highway there, and thereby the same was and yet is greatly hurt, damaged, impaired and spoiled, so that the good people of the said state, through the same way, with their horses, coaches, carts and carriages, then and on the said other days and times could not, nor yet can go, return, pass, repass, ride and labor as they ought and were wont to do; to the great damage and common nuisance of all the good people of the said state through the same highway going, returning, passing, repassing, riding and laboring, and against, &c. (Conclude as in book 1, chap. 3.) (694) For diverting a watercourse running into a public pond or reservoir.(t) That from time whereof, &c., there has been and still is a common watercourse, near a certain place called F., within the Parish of B., in the said County of L., which continually during all the said time, at all times of the year, hath run and been used, and accustomed and of right ought, without any obstruction or impediment, to run out of a certain place called the Great Wash, situate and being in the Parish of S., in the county aforesaid, into and along the common highway there, leading from and into to a certain pond and reservoir in the said common highway there, and from the said pond and reservoir into the lands of H. D., at which said watercourse, pond and reservoir, the inhabitants of the said Parish of B., and all other the citizens of the said state, in and through the said common highway passing and repassing, all the said time have used, and of right been accustomed to water their horses and other cattle at their free will and pleasure. And the jurors, &c., present that P. Q., late of, &c., on, &c., at, &c., aforesaid, in and across the said watercourse, in the said highway there, a certain mound, bank or dam did then and there make, erect and build, and the same (s) Dickinson's Q. S. 6th ed. 419. See for another form for same, 696. |