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 cartloads of, &c.; and unlawfully and injuriously kept and continued and caused and procured to be kept and continued, the said stages, &c., so projecting into the said port and harbor as aforesaid, and the said piles, &c., so erected, &c., 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, &c.; 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, &c., and other persons using the said port and harbor as aforesaid, against, &c. (Conclude as in book 1, chap. 3.)

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

That N. B., late of, &c., on, &c., 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, &c., contrary, &c., and against, &c. (Conclude as in book 1, chap. 3.)

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

That A. B., late of, &c., yeoman, &c., and on divers days and times between that day and the day of the taking of this inquisition, with force and

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

(e) The features peculiar to these, as well as to all other kind of nuisances, have been already specified, ante, 674, n., Wh. C. L. § 2370. 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; 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. Davey, 5 Esp. 217; R. v. Neil, 2 C. & P. 485; People v. Cunningham, 1 Denio 524; Com. v. Vansyckle, 7 Pa. 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

arms, at, &c., in the near neighborhood of divers public streets in the said county, where divers good citizens of the said commonwealth are constantly

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 late case of much consideration, Rex 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 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 Pa. L. J. 82; post, p. 536; Wh. C. L. § 2362, &c. 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 prac tical 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; viz. 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 v. Barba, 3 Taunt. 110 (cited 1 B. & Ad. 880); Bliss v. Hall, 5 Scott 500; 4 Bing. N. C. 183, S. C.; Elliotson v. Feetham, 2 ib. 134; 2 Scott 174; see Flight v. Thomas, 10 A. & E. 590; Wh. C. L. 2362, &c.

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 and 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; 4 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. C. L. § 2382. 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; Hawk. b. 1, c. 74. In this country, however, from the absence of ecclesiastical courts, the law is otherwise, as not only is the solicitation of chastity an independent offence, State v. Avery, 7 Conn. 267, but all open immorality, whether consisting in public drunkenness or public lasciviousness, is indictable as a nuisance, as will be noticed at the foot of next page.

At common law, as will be seen, it is an indictable offence to keep a house of ill-fame for lucre; Jennings . 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

passing and repassing, and of divers dwelling-houses in the said county, inhabited and occupied by divers other good citizens aforesaid (here state the

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. Perhaps, however, 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. C. L. 2382, &c. 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 fire-arms 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, &c., 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 post, 716; and keeping ferocious animals without proper control, Burns' J., tit. Nuisance I., are indictable nuisances.

66

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 gaminghouse" Com. v. Pray, 13 Pick. 359; 1 T. R. 754. An indictment charging the defendants 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," &c., 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 there was a collection of twenty or thirty negroes more than belonged to the place, who got drunk, danced and disturbed the neighborhood with noise and uproar;" it was held, that the facts found by the special verdict did not constitute the offence of keeping a disorderly common tippling-house;" Dunnaway v. State, 9 Yerg. 350. See Wh. C. L. § 2382, &c. Where an indictment charged that the defendant was a common, gross and notorious drunkard, and that he on divers days and times got grossly drunk, the judgment was arrested, for private drunkenness is not an indictable offence; it becomes so by being open and exposed to public view, so as to become a nuisance; State v. Waller, 3 Murph. 229. An indictment for a public nuisance, in frequenting and haunting houses of ill-fame, must expressly charge, that "the defendant, knowing the house to be a house of ill-fame, did openly and notoriously haunt and frequent the same;" Brooks v. State, 2 Yerg. 482; see per contra, State v. Cagle, 2 Humph. 414. On a presentment for open and notorious lewdness, it is no defence that the parties verbally contracted marriage and lived together as man and wife, according to the common law. The mode of contracting and solemnizing marriages, prescribed by the statute, must be strictly adhered to, otherwise the parties are liable to indictment; Grisham and Jane Ligan v. State, 2 Yerg. 589. It is said to be a misdemeanor to exhibit stud horses in a city; Nolin v. Mayor, 4 Yerg. 163. An indictment lies against a master for permitting his slaves to pass about in the public highway in a state of nakedness. It is not necessary that it be proved that the slave did exhibit him or herself in such a state of nakedness by any command of the master. That the master caused and permitted it, may be inferred from circumstances satisfactory to the mind of the jury; Britain v. State, 3 Humph. 203; but see Wh. C. L. § 2396, &c. In an indictment for exposing

nuisance), to the great damage and common nuisance of all the good citizens of this commonwealth, there inhabiting and residing, passing and repassing, to the evil example, &c., and against, &c. (Conclude as in book 1, chap. 3.)

(706) For carrying on the trade of a trunk maker near to houses, so as to become a nuisance. (f)

That A. B., late of, &c., on, &c., and on divers days and times between that day and the taking of this inquisition, at, &c., in a certain workshop there situate, near the dwelling-houses of divers citizens of the said state and also divers public highways, there unlawfully and injuriously did set up, exercise and carry on the trade and business of a trunk maker, and on, &c., and on the other days and times aforesaid, there, at unseasonable hours in the morning and in the day-time, and at late hours of the nights of the days aforesaid, unlawfully and injuriously did make, and did cause and procure to be made, divers loud and annoying sounds and noises, by then and there hammering and striking, and causing and procuring to be hammered and stricken, divers trunks and boxes made of wood, iron and copper, and divers pieces of wood, tin, brass, copper, iron and other metals, with divers large hammers and other instruments made of wood and iron, by reason whereof the good people of the said state residing in the said dwelling-houses near to the said workshop, on the several days and times aforesaid, were and still are greatly annoyed, disturbed and incommoded in the use, occupation and enjoyment of their said dwelling-houses, and greatly interrupted in the exercise and pursuit of their lawful business and transactions, and deprived of their natural sleep and rest and rendered and made in other respects uncomfortable, and thereby also the good people of the said state, in and through and along the common highway aforesaid, passing, repassing and travelling, were and are greatly annoyed and disturbed; to the great damage, &c., and against, &c. (Conclude as in book 1, chap. 3.)

(707) For erecting a soap manufactory near a highway and dwelling-house.(g)

That A. B., of, &c., on, &c., at, &c., near to a public street and common highway there, and also near to the dwelling-houses of divers citizens there situate and being, did unlawfully and injuriously erect and build, and cause and procure to be erected and built, a certain building for the purpose of making and manufacturing soap therein, and did unlawfully and injuriously make, set up and place, and did cause and procure to be made, set up and placed in the said building, divers furnaces, stoves, cauldrons, coppers and boilers, to wit (here insert the number of each), for the purpose of boiling, melting and mixing tallow, soap-lees, and other materials used in the making and manufacturing of soap; and that the said A. B. did, on the day and year aforesaid, and on divers other days and times between that day and the day of the taking of this inquisition, at, &c., unlawfully and injuriously boil, melt and mix together, and did cause and procure to be boiled, melted, and mixed together in the said furnaces, stoves, cauldrons and boilers respectively, so made, set up and placed in the said building as aforesaid, divers large quantities of tallow, soap-lees and other materials used in the making and manufacturing of soap, for the purpose of making and manufacturing the

the person, it is sufficient, if it be charged to have been done "to public view in a public place." It is not necessary to aver that the prisoner was seen by citizens; State v. Roper, 1 Dev. & Bat. 208.

(f) Dickinson's Q. S. 6th ed. 424.

(9) This indictment is taken by Mr. Davis, Prec. 191, from 2 Stark. C. P. 657: 2 Chit. 654, 655. Add, if necessary, another count for continuing the building, &c.; for a precedent for this, see 2 Stark. C. P. 658.

same into soap; and did then and there make and manufacture, and did cause and procure to be made and manufactured, divers large quantities of soap from the same tallow, soap-lees and other materials; by reason of which said premises, divers noisome and unwholesome smokes, vapors, smells and stenches, on the days and times aforesaid, were emitted and issued from the said building, so that the air, on the several days and times aforesaid, at, &c., was thereby greatly filled and impregnated with the said smokes, vapors, smells and stenches, and was rendered and became, and was corrupted, offensive and unwholesome; to the great damage and common nuisance of, &c., and against, &c. (Conclude as in book 1, chap. 3.)

(708) Nuisance by deleterious smoke and vapors.(a)

That C. D., late of, etc., on the first day of June in the year of our Lord and on divers other days and times between that day and the day of the finding of this indictment, at B. in the County of S. unlawfully and injuriously did erect, and cause and procure to be erected, certain furnaces and ovens for the burning of coke, and did then and there unlawfully and injuriously cause and permit great quantities of smoke and of sulphurous and other noxious, unwholesome, and injurious vapor to arise from the said furnaces, and then and there to impregnate the air near and around the said furnaces, and then and there to enter the dwelling-houses there situate near the said furnaces; to the great damage and common nuisance of all persons then and there living and inhabiting near the said furnaces, and of all other persons then and there passing near the same, &c. (Conclude as in book 1, chap. 3.)

(709) Nuisance by rendering water unfit to drink. (b)

That C. D., late of, etc., on the first day of June in the year of our Lord and on divers other days and times between that day and the day of the finding of this indictment, at B. in the County of S., did unlawfully and injuriously convey, and cause and suffer to be drained and conveyed, great quantities of noxious and offensive liquid matters, scum, and refuse, produced from the making of gas and of coal-tar and coke, from certain premises of the said C. D. there situate, into a certain ancient stream of pure water there situate and flowing, and did thereby then and there corrupt and render unwholesome the water of the said stream, and make the same unfit to drink; to the great injury and common nuisance of all persons then and there residing near the said stream, and of all other persons then and there using the water thereof, and against the peace, etc. (Conclude as in book 1, chap. 3.)

(710) For keeping gunpowder in a city. (h)

That C. S. and L. S., late of, &c., on, &c., and on divers other days and times between that day and the day of taking this inquisition, with force and arms at, &c., near the dwelling-houses of divers good citizens of the state, and also near a certain public street, there did (negligently and improvidently)

(a) 6 Cox, C. C. Appendix, p. lxxvi. See Rex v. Davey, 5 Esp. 216.

(b) 6 Cox, C. C. Appendix, lxxvi. See Rex v. Medley, 6 Carrington & Payne 229. (h) That portion of this form not in brackets, was before the Supreme Court of New York in People v. Sands, 1 Johns. 78, and its adequacy as an indictment at common law was examined with great learning by Kent C. J., Spencer, Livingston and Thompson Js. Judgment was arrested, though it was intimated that if the gunpowder had been charged to have been kept negligently and improvidently, there would have been enough on which to rest a verdict.