then the indictment proceeds as follows.] Yet one J. E. late of, &c. T. R. late of, &c. [and other defendants] on, &c. with coaches so to wait are guilty of a nuisance," 3 Campb. 226, and see 1 Russel, 463. Nor is it necessary, in order to fix the responsibility on the defendant, to shew that he immediately obstructed the public way, or even intended to do so; it seems to be sufficient, if the inconvenience result, as an immediate consequence of any public exhibition or act; for the erection of a booth to display rope dancing, and other attractives spectacles, near a public street in London, which draws together a large concourse of people, is a nuisance liable to be punished and abated, 1 Ventr. 169. 1 Mod. 76. 2 Keb. 846. Bac. Abr. Nuisance. But distributing hand-bills in a public way has been holden not to be illegal, 1 Burr. 516; and it may be collected that a mere transitory obstruction, which must necessarily occur, is excusable if all reasonable promptness be exerted. So that the erection of a scaffolding to repair a house, the unloading a cart or waggon, and the delivery of any large articles, as casks of liquor, if done with as little delay as possible, are lawful, though if an unreasonable time were employed in the operation they would become nuisances, 3 Campb. 231. It seems to have been holden by Lord Kenyon, that the existence of a nuisance for a great number of years might render it legal, Peake. N. P. 91; but the contrary now appears to be settled, 7 East, 199. 3 Campb. 227. ante, vel. i. 160. If the party who has been indicted for a nuisance continue the same, he may be again indicted for such continuance of the nuisance, The King v. Stead, 8 T. R. 142. Independently of any legal pro ceedings, it appears that any person may lawfully abate a public nuisance, at least if it be placed in the middle of a highway, and obstruct the passage of his majesty's subjects, Hawk, b. 1. c. 75. s. 12; but though a party may remove the nuisance, yet he cannot remove the materials or convert them to his own use, Dalt. c. 50; and so much of the thing only as causes the nuisance ought to be removed, as if a house be built too high, only so much of it as is too high should be pulled down, 9 Rep. 53. God. 221. 2 Stra. 686. The modes of prosecution. Indictment, &c. appear to be the same which we have seen may be pursued for not repairing, see note ante, 565 to 576: Since whatever proceedings may be adopted for a mere nonfeasance, are, at least, equally applicable to an actual obstruction. The requisites also of the indictment, presentment, or information, are in general similar. The same rules and principles almost invariably apply. Thus it is not necessary to state the antiquity of the road, or to set forth its boundaries. If the nuisance continue, the indietment should charge the facts accordingly, see 8 T. R. 142. Every proceeding, whether for nuisances arising from neglect of the duty, or encroachments on the publie conveniences, must contain the words" to the common nuisance of all the liege subjects of our lord the now king," residing, passing, or using, &c. force and arms at the parish of T. aforesaid, in the county aforesaid, unlawfully and injuriously made, erected and placed, and caused to be made, erected and placed a certain gate and gate posts in, upon, and across the said king's highway, in the parish of T. aforesaid, in the county aforesaid, between the said yills of T. and T. and unlawfully, and injuriously locked, fastened, and chained the said gate posts so as aforesaid, made, erected, and placed, and locked, fastened and chained, from the said, &c. until the day of taking this inquisition, with force and arms at, &c. aforesaid, unlawfully and injuriously continued, and still doth continue, whereby the liege subjects of according to the facts, in its a Judgment. Persons guilty of common nuisance may be fined and imprisoned at the discretion of the court in which they are convicted, Hawk. b. 1. c. 75. s. 14. But no confinement or corporal punishment is now inflicted. The object of the prosecution is, as in the case of highways, to remove the nuisance; and to that end alone, the sentence is in general directed. It is therefore usual, when the nuisance is stated on the proceedings, as continuing, in addition to a fine, to order the defendant, at his own costs, to abate the nuisance, 2 Stra. 686. But it should seem, that where building is not a nuisance in itself, but becomes so, either by its extension, or the use a made of it for carrying on a noxious trade, the house itself ought not to be demolished, but only such part removed as annoys the public, or such injurious occupation discontinued, Id. ibid. And where the nuisance is not charged as still existing, but as having been offensive on a day specified, no judgment need be given to abate; because it would be absurd to adjudge that to be destroyed, which does not appear to exist, 8 T. R. 142. And if the court be satisfied that a nuisance indicted is already effectually abated before judgment is prayed upon the indictment, they will not, in their discretion, give judgment to abate it; and they refused to give such judgment upon an indictment for an obstruction in a public highway, which highway, after the conviction of the defendant, was regularly turned by an order of justices, and a certificate obtained, that the new way was fit for the passage of the public, and on affidavits that so much of the old way indicted, as was still retained, was freed from all obstruction, 13 East, 164. our said lord the king for all the time aforesaid, were not able; nor yet are able to go, return, pass and repass along and through the said common king's highway, with their cattle, carts and carriages, as they were accustomed and ought to do. To the great damage, hindrance, and common nuisance of all the liege subjects of our said lord the king, going, returning, passing, and repassing in, along, and through the said common king's highway, to the evil example of all others, and against the peace of our said lord the king, his crown and dignity. And the jurors, &c. do further present, that, &c. [describe the Second count, for locking and fas highway as in first count.] Yet the said J. E., T. R. &c. on tening a gate the said, &c. with force and arms at, &c. aforesaid, unlawfully erected in a comand injuriously locked, fastened and chained, and caused to be mon public road, locked, fastened and chained, a certain other gate before that time made, to certain other gate posts before that time made, erected and placed in, upon, and across the said last-mentioned king's highway, in, &c. aforesaid, between the vills of T. and T., and the said last-mentioned gate so locked, fastened, and chained to the said last-mentioned gate posts, from the said, &c. until the day of taking this inquisition, with force and arms at, &c. aforesaid, unlawfully and injuriously continued, and still doth continue, whereby the liege subjects of our said lord the king for all the time last aforesaid, were not able, nor yet are able to go, return, pass, and repass along and through the said last-mentioned common king's highway, with their cattle, carts and carriages, as they were accustomed and ought to do, to the great damage, hindrance, and common nuisance, &c. [609] [As in the first count to the end.] other form for highway («). a That A. P. late of, &c. on, &c. with force and arms, at, &c. [ 610 ] in a certain king's highway there leading from, &c. to, &c. at The like in an a certain place there, near to the south corner of a place erecting and keeping shut a called, &c. unlawfully and injuriously did erect, and cause to gate across be erected, a certain wooden gate of the length of fifteen feet, and of the height of four feet, upon and across the said king's highway aforesaid, and that the said A. P. 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 (a) See a precedent, 6 Wentw. 405, and see the precedent and note, ante, 607. For obstructing a footway in defendant's close, the aforesaid king's common highway, during all the time aforesaid, was so obstructed and stopped up, that the king's liege subjects in, by, and through the same highway, could not, nor yet can, go, return, and pass, with their horses, coaches, carts, and carriages, so freely as they ought and were wont to do, to the great damage and common nuisance, &c. [Conclusion as ante, 608.] That from time whereof the memory of man runneth not to the contrary, there was and yet is, a certain ancient and comby pulling down a mon public foot-way leading from the town of A. in the parish stile and erecting a hedge wall, &c. of B. in the county aforesaid, through and along a certain across way (a). close of land called "The Ten Acres," lying and being at the parish aforesaid, in the county aforesaid, towards and unto the town of W. in the same county, used for all the liege subjects of our said lord the king, and his predecessors, to go, return, pass, and repass, on foot, in, through, along, and over, every year, at all times of the year, at their free will and pleasure, without any obstruction, hindrance, or impediment whatsoever, and which said close of land, on, &c. was, and continually from thence, until the day of the taking of this inquisition, hath been, and still is, in the possession and oc cupation of one J. M. late of, &c. aforesaid. And the [611] jurors, &c. do further present, that the said J. M. on the said, &c. with force and arms, &c. unlawfully, wilfully, and injuriously, did obstruct, stop up, and inclose, and cause and procure to be obstructed, stopped up, and inclosed the said footway, by then and there taking down, breaking down, and prostrating, and causing and procuring to be taken down, broken down, and prostrated, a certain ancient wooden stile then erected, standing, and being in and upon the same footway, in the said close of land, and by then and there making, setting, and placing, and causing and procuring to be made, set up, and placed, a certain large hedge, in, upon, and across the said footway, in the place, room, and stead of the said stile, and also by then and there erecting, setting up, and placing a certain erection, wall, or building made of brick, mortar, and other materials in, upon, and across a certain other part of the said footway in the said close there, and the said footway so (a) See form, Cro. C. A. 373, and precedent and note, ante, 607. as aforesaid obstructed, stopped up, and inclosed with the said hedge and building, he the said J. M. from the said, &c. until the day of the taking of this inquisition, with force and arms, at, &c. aforesaid, unlawfully and injuriously hath continued, and still doth continue the same so obstructed, stopped up, and inclosed, whereby the liege subjects of our said lord the king, during all the time last aforesaid, could not, nor can they now, go, return, pass, and repass in, through, along, and over the same footway, as they before used and were accustomed to do, and still of right ought to do, to the great damage, &c. [Conclusion as ante, 608.] That from time whereof, &c. [describe the highway, as ante, For digging a ditch, and rais576. 593, 4. 607,] for themselves and their goods, without any ing a hedge across stoppage or hindrance by any ditches, hedges, or other obstacles a highway (a). whatsoever, nevertheless one A. O. late of, &c. on, &c. with force and arms, at, &c. aforesaid, in the place aforesaid, called, &c. upon the common highway aforesaid, a certain ditch and quickset hedge, did make, and the said ditch and quickset hedge so as aforesaid made, doth yet continue and keep, to the great, &c. [Conclusion as ante, 608.] That C. W. late of, &c. on, &c. with force, &c. at, &c. For putting and continuing posts aforesaid, to wit, in a certain common and public foot-path and chains across there, for all the king's subjects to pass and repass at their a footway (b). free will and pleasure, unjustly did erect, put, and place, and cause to be erected, put, and placed, eight wooden posts, with an iron chain affixed and fastened to the same posts, the said last-mentioned iron chain being of the length of ten yards, and the said posts, together with the said chain so as aforesaid affixed and fastened to the said posts, and which were erected as aforesaid, put and placed in and upon the said foot-path, from the said, &c. until the day of the taking of this inquisition, with force and arms, at, &c. aforesaid, unlawfully and injuriously did continue, and yet doth continue, by which the same foot-path could not, nor can they now go, return, pass, and repass so freely and safely as they ought and were wont to do, to the great damage and common nuisance of all the liege subjects of our said lord the king, through the same foot-path (a) Barn, J. Highways. (b) The MS. of a gentleman at the bar; see precedent and [ 612 ] 1 |