did raise so high, that the said water in its said ancient course was obstructed, and into the said pond and reservoir did not run as it was used and accustomed and ought to do, so that the inhabitants of the said parish and all other the citizens of the said state in and through the said common highway passing and repassing, were and still are deprived of the use of the said pond and reservoir of water for their cattle, and hindered from enjoying the same as they ought and were wont to do; to the great damage and common nuisance, not only of all the inhabitants of the said Parish of B., but of all other the citizens of the said state, in and through the said common highway passing and going, and against, &c. (Conclude as in book 1, chap. 3.)

(695) For obstructing a watercourse, called "Peg's Run.”(u)

That S. G., late of, &c., yeoman, on, &c., at, &c., unlawfully and injuriously did put and place divers quantities of earth, gravel and other materials on a piece of land adjoining the public highway, and near a certain ancient watercourse called Peg's Run, there being, and the same from the year and day aforesaid, to the day of taking this inquisition, did and yet doth injuriously and unlawfully continue, by reason whereof the rain and waters which were wont and ought to flow and pass to and through the same watercourse, on the said first mentioned day and year, and at divers other days and times afterwards between that day and the taking of this inquisition, did overflow and remain on the said piece of ground, and then and there and at the said days and times did become stagnant, putrid and noxious, from whence unwholesome damps, fogs and smells did arise, whereby the air was greatly corrupted and infected, to the great damage and common nuisance of the liege subjects of this commonwealth dwelling thereabouts, and all others passing and repassing on the said highway and near the said stagnant waters, and against, &c. (Conclude as in book 1, chap. 3.)

Second count.

That the said S. on, &c., at, &c., unlawfully and injuriously, a certain ancient watercourse called Peg's Run with earth, gravel and other materials did obstruct and stop up, by reason whereof the rains and waters that used to flow through the same watercourse did overflow the adjacent lands, and remain and become putrid, stagnant and noxious, and did send forth unwholesome and infectious damps, fogs and smells, whereby the air was greatly corrupted and infected, to the great damage, &c., and against, &c. (Conclude as in book 1, chap. 3.)

(696) For permitting waters of a mill to overflow.(v)

That A. B., "being possessed of a certain mill and mill-dam with their appurtenances, situate near and adjacent to a certain common highway and public road, and the dwelling-houses of divers of the good citizens of this commonwealth," did on, &c., and on divers days before and since, unlawfully and injuriously permit the water of the mill-pond to overflow the adjacent lands, as well of others as his own, and also the public road or highway, by means whereof the land so overflowed was rendered and kept marshy, and filled and covered with noxious weeds and putrid vegetation, whereby the air became corrupted and infected, to the great damage and common nuisance, &c.

(u) Framed by Mr. Bradford in 1784.

(v) This count was sustained in Virginia, on demurrer, in Stephen v. Com., 2 Leigh 759; See ante, 693.

(697) For obstructing an ancient watercourse, whereby a public highway was overflowed and spoiled. (w)

That P. A., late of, &c., yeoman, on, &c., at, &c., a certain ancient watercourse called the Raystown branch of Juniata, and a certain other ancient watercourse called Danning's Creek, which said ancient watercourse called the Raystown branch of Juniata, running from Londonderry Township in the county aforesaid, and which said ancient watercourse called Danning's Creek, running from St. Clair Township in the county aforesaid, and uniting in and running through Bedford Township in the county aforesaid, and running between the said townships of Londonderry and St. Clair and the Township of Hopewell in the said county, across and through which the commonwealth's highway, or a road leading from the town of Bedford in the county aforesaid, towards and unto the crossings of Juniata in the county aforesaid, was laid out in due form of law, did obstruct and stop up, and the said watercourses so as aforesaid obstructed and stopped up from the said, &c., until the day of the taking of this inquisition, at the township of Bedford in the county aforesaid, unlawfully and injuriously hath continued and still doth continue, by reason whereof, the rain and waters that were wont and ought to flow and pass through the said watercourses, on the same day and year and divers other days and times afterwards between that day and the day of the taking of this inquisition, did overflow and remain in the commonwealth's highway or road aforesaid, in the township of Bedford aforesaid, and thereby the same highway or road was and yet is greatly hurt and spoiled, so that the liege subjects of the commonwealth, through the same highway or road, with their horses, coaches, carts and carriages, then and at other days and times, could nor yet can go, return, pass, ride and labor as they ought and were wont to do, to the great damage and common nuisance of all the liege subjects of the commonwealth through the same highway or road going, returning, passing, riding and laboring, and against, &c. (Conclude as in book 1, chap. 3.)

(698) For erecting a dam on a navigable river.(x)

That defendant on, &c., at, &c., did erect and build, set up, repair and maintain, a certain dam of the length of one hundred feet, of the breadth of twelve feet and of the height of six feet, in the river Swatara, in the township of Lower Swatara in the county aforesaid, and in that part of said river declared by an act of assembly of the Commonwealth of Pennsylvania, a public stream and common highway, within and across a part of the said river Swatara, within the township of Lower Swatara and the county aforesaid, by means of which the navigation and free passage of, in, through, along and upon said river Swatara is greatly obstructed; and the said dam so as aforesaid erected, built and set up, did repair, maintain and continue, from the said, &c., until the day of the taking of this inquisition, with force and arms, at the township and county aforesaid, and the same dam does still keep

(w) R. v. Arnold, 3 Yeates 417. This indictment was sustained by Yeates and Smith, Justices, at a Circuit Court in Bedford, 1802. It was held that it was not necessary to state how far in length or breadth the water stood on the road. See ante,

693.

(x) Com. v. Church, 1 Barr 105. This indictment was quashed by the Quarter Sessions of Dauphin County, on the ground that the proceeding was not in accordance with the act of 22d March, 1803, which prescribed the only method by which such a nuisance could be abated. The judgment was reversed by the Supreme Court, which held, that a dam in a stream which was a highway, was prima facie indictable as a nuisance, not in subordination to the act of 1803, but according to the course of the common law. This indictment, however, was not examined in any other aspect.

up, maintain and continue, to the great damage and commom nuisance, obstruction and impediment of all the good citizens of this commonwealth passing and navigating on and through the said public stream and highway, with their arks, craft, boats and vessels, about their necessary business, with their goods and chattels and merchandise, contrary, &c., to the evil example, &c., and against, &c. (Conclude as in book 1, chap. 3.)

(699) For erecting obstructions on a navigable river.(y)
situate and being between

That a certain part of the river

and

is, and

and also wholly situate and being in the said county of from time whereof the memory of man is not to the contrary, hath been an ancient river, and an ancient and common highway for all the citizens of said commonwealth with their ships, lighters, boats and other vessels to navigate, sail, row, pass and repass, and labor at their will and pleasure, without any impediment or obstruction whatever. And the jurors aforesaid, upon their oath aforesaid, do further present, that A. B., late of, &c., at, &c., fisherman, on, &c., and on divers other days and times between that day and the day of the taking of this inquisition, at, &c., in the said County of unlawfully, wilfully and injuriously did erect, place, fix, put and set in the said river and ancient and common highway there, a certain (here describe the obstruction according to the fact), and that the said A. B., from the day and year first aforesaid, hitherto, at, &c., aforesaid, the said unlawfully, wilfully and injuriously hath continued, and still doth continue, so erected, placed, fixed, put and set in the said river and ancient and common highway aforesaid; by means whereof the navigation and free passage of, in, through, along and upon the said river and ancient and common highway there, on the same day and year aforesaid, and from thence hitherto hath been, and still is greatly obstructed, straitened and confined; so that the citizens of said commonwealth navigating, sailing, rowing, passing, repassing and laboring with their ships, lighters, boats and other vessels in, through, along and upon the said river and ancient and common highway there, on the same day and year aforesaid, and from thence hitherto, could not nor yet can navigate, sail, row, pass, repass and labor with their ships, lighters, boats and other vessels, upon and about their lawful and necessary business, affairs and occasions, in, through, along and upon the said river and ancient and common highway there, in so free and uninterrupted a manner as of right they ought, and before have been used and accustomed to do; to the great damage and common nuisance of all the citizens of said commonwealth navigating, sailing, rowing, passing, repassing and laboring with their ships, boats, lighters and other vessels in, through, along and upon the said river and the ancient and

common highway there; to the great obstruction of the trade and navigation of and upon the said river, and against, &c. (Conclude as in book 1, chap. 3.)

(700) For obstructing a river which is a public highway, by erecting a fish trap or snare in it called "putts."(z)

That the river Severn, that is to say, that a certain part of the said river lying and being in the County of Gloucester, is, and from the time whereof

(y) Taken by Mr. Davis, Prec. 190, from 2 Stark. 661

(z) This form is taken from Arch. C. P. 5th Am. ed. 757. The indictment is at common law, and the punishment is fine or imprisonment, or both. Mr. Archbold remarks, that to divert a part of a public river, whereby the current of it is weakened and rendered 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

the memory of man is not to the contrary hath been an ancient river, and the ancient and common highway for all the good people of the said state, with their ships, barges, lighters, boats, wherries and other vessels to navigate, sail, row, pass, repass and labor, at their will and pleasure, without any impediment or obstruction whatsoever. And the jurors aforesaid upon their oath aforesaid, do further present, that J. S., late of the Parish of B., in the county aforesaid, fisherman, on, &c., and on divers other days and times between that day and the day of taking of this inquisition, with force and arms, at the parish aforesaid in the county aforesaid, unlawfully, wilfully and injuriously did (erect, fix, put, place and set up in the said river and ancient and common highway there near a certain place called Gay's Spard, a certain snare, trap, machine and engine commonly called putts, for the taking and catching of fish, and composed of wood, wooden stakes and twigs; and that he the said J. S., on, &c., in the year last aforesaid and on divers other days and times between that day and the day of the taking of this inquisition, at the parish aforesaid, in the county aforesaid, in the said river and ancient and common highway there the said snare, trap, machine and engine called putts, unlawfully, wilfully and injuriously did continue, and still doth continue, so erected, fixed, put, placed and set in the said river and ancient and common highway as aforesaid); by means whereof the navigation and free passage of, in, through, along and upon the said river Severn and the ancient and common highway, on the day and year aforesaid and on the said other days and times, hath been, and still is greatly straitened, obstructed and confined, to wit, at the parish aforesaid in the county aforesaid, so that the good people of the said state navigating, sailing, rowing, passing, repassing and laboring with their ships, barges, lighters, boats, wherries and other vessels in, through, along and upon the said river and ancient and common highway there, on the same day and year aforesaid, and on the said other days and times, could not nor yet can go, navigate, sail, row, pass, repass and labor with their ships, barges, lighters, boats, wherries and other vessels, upon and about their lawful and necessary affairs and occasions, in, through, along and upon the said river and ancient and common highway there, in so free and uninterrupted a manner as of right they ought, and before have been used and accustomed to do; to the great damage and common nuisance of all the good people of the said state navigating, sailing, rowing, passing, repassing and laboring with their ships, barges, lighters, boats, wherries and other vessels in, through, along and upon. the said river Severn and ancient and common highway there, to the great obstruction to the trade and navigation of and upon the said river, to the evil example, &c., and against, &c. (Conclude as in book 1, chap. 3.)

(701) For damming creek. (a)

That, &c., on, &c., at, &c., did unlawfully, injuriously and knowingly erect, or cause to be erected, a certain dam across the Onondagua Creek, a

for a nuisance, for not removing it; R. v. Watts, 2 Esp. 675; see R. v. Russel and others, 9 D. & R. 566; 6 B. & C. 566; R. v. Ward, 4 A. & E. 384; 6 N. & M. 38; R. v. Tindal, 1 N. & P. 719; 6 A. & E. 143; R. v. Morris, 1 B. & Ad. 441; R. v. Randall, C. & M. 496.

The procedure by indictment at common law, is still in force in Pennsylvania, notwithstanding the cumulative remedies given by statute; see Wh. C. L. § 11. In Massachusetts the provincial statute of 8 Anne, c. 3, for preventing obstructions in rivers, remains in full vigor; Com. v. Ruggles, 10 Mass. 391; though a transient and temporary seine or net is not within the act; ib. But no indictment lies for obstructing a stream not navigable.

(a) People v. Townsend, 3 Hill's R. 479. This count seems to have been sustained by the Supreme Court, who held, Bronson J. dissenting, that the allegation that by reason of the dam, the animal and vegetable substances brought down the stream were collected and accumulated in large quantities, and become offensive, and corrupted the

common and ancient watercourse, at the town of Salina, &c., by means of which the water flowing in the creek was stopped, dammed up, &c., and flowed back in and up the surface of large tracts of adjoining land, by means whereof the mud, wood, leaves, brush, and the animal and vegetable substances and other filth collected and brought down the channel of said watercourse by the natural flowing of the waters, then became and were, during all the time aforesaid, collected and accumulated in large quantities in the channel of the said watercourse, and on the lands overflowed as aforesaid; and the said mud, wood, &c., so there collected, &c., became and were 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, &c., 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, &c., and against, &c. (Conclude as in book 1, chap. 3.)

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

That on, &c., at, &c., A., &c., 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, &c., 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, &c. (Conclude as in book 1, chap. 3.)

(703) For obstructing a harbor by erecting in it piles, &c.(c)

That before the committing, &c., to wit, from time whereof, &c., 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, &c., for the purposes of safe and commodious navigation, for the importation and exportation 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, &c., on, &c., 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, &c., with force, &c., within the said County of Y., to wit, at, &c., unlawfully, wilfully and injuriously did erect, place, fix, put, sink and set in

water, &c., was sustained by proof showing the injury to have resulted from the alternate rise and fall of the water in the pond, or from the action of the sun upon the vege tables growing on the margin, &c.; and this, notwithstanding the stream on which the dam stood, was not a public highway.

(b) 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.

(c) R. v. Tindall, 6 A. & E. 143. A special verdict was rendered on which a verdict of not guilty was entered. There seems to have been no doubt, however, that the facts set forth in the indictment, formed a criminal offence.