some offences as annoy the whole community in general, and not merely some particular person, and therefore are indictable only, and not actionable, as it would be unreasonable to multiply suits by giving every man a separate right of action for what damnifies him in common only with the rest of his fellow-subjects. (20) Of this nature are, 1. Annoyances in highways, bridges, and public rivers, by rendering the same inconvenient or dangerous to pass, either positively, by actual obstructions, or negatively, by want of repara

"

(20) Neither a dam thrown across a stream, nor a collection of water in a reservoir created thereby, is a nuisance per se [By itself]. The question of nuisance or no nuisance depends upon the presence or absence of various extraneous facts and circumstances. And it is proper that the existence of those facts and circumstances, and the question of nuisance, should be referred to the common-law trial by jury, instead of being determined by a board of health, and property being summarily destroyed by its order, without compensation to its owner, and without an opportunity being given to him to be heard. The power of health boards is subordinate to the judicial authority of the State. Rogers v. Barker, 31 Barb. 447, 452 (1860). Russell on Crimes, 1, *435. "A public or common nuisance is such an inconvenience, or troublesome offence, as annoys the whole community in general, and not merely some particular person.' Veazie v. Dwinel, 50 Me. 479, 482 (1862). "When the suffering of one community is no more than that of every other, it is small; and small or great, if the injury is universal, affecting no one specially, the law would be unreasonable to allow each to bring his separate suit where all could alike complain, and overwhelm the transgressor with litigation. Therefore the rule of the law is that in such circumstances no one can have his private action." Bishop, Cr. L. 1, 235, pp. 127, 128. "No one can maintain a civil action for a public nuisance, unless he sustain special damage therefrom, different from that sustained by the rest of the public.' Watts v. Norfolk & W. R. Co., 39 W. Va. 196, 212 (1894). Quare whether a town is entitled to an injunction to restrain the commission of acts which affect the state at large. Town of Sheboygan v. Sheboygan & Fon du Lac R. R. Co., 21 Wis. 675, 677 (1867). No man can acquire a right to maintain a public nuisance by prescription. Sims v. Frankfort, 79 Ind. 446, 452 (1881). Building a fence across a public highway is a nuisance. State v. Miskimmons, 2 Ind. (Carter) 440, 441 (1850). "The question whether anything within the limits of a highway is to be deemed a nuisance is a question of fact to be settled by a jury, and depends upon the inquiry, whether it unnecessarily obstructs the free passage." Hopkins v. Crombie, 4 N. H. 520, 525 (1829). The owners of a public port or wharf are of common right bound to keep it in repair. A corporation laboring under such obligation in respect to their wharves or docks, will also be liable for special damage to individuals, who may recover by action on the case. Pittsburg City v. Grier, 22 Pa. St. 50, 59 (1853). An encroachment of a fence upon the highway is not a public nuisance, so as to authorize an individual to abate it, unless it interferes with the use of the road by the public. His justification will be limited by the necessity of the case; and if the use of the road is not interfered with by the fence, he will be a trespasser in removing it. If there be a nuisance in a public highway, a private individual cannot of his own authority abate it, unless it does him a special injury; and he can only interfere with it so far as is necessary to exercise his right of passing along the highway, doing no unnecessary damage. Harrower v. Ritson, 37 Barb. (N. Y.) 301, 303 (1861). If the encroachment by fences upon the highway, is of such a nature that no one, in using the highway, is incommoded, then it is not a nuisance. A nuisance may be a public and a private nuisance. In such a case the public may proceed, by indictment, to abate it, and punish its author, or those individuals to whom it is a private nuisance by reason of its being specially inconvenient and annoying to them, or because they are in some particular way incommoded thereby, may of their own act abate it. Griffith v. McCullum, 46 Barb. (N. Y.) 561, 568 (1866). A public nuisance is a case to be reached by indictment, not by an action at law for damages, or by a bill in equity for damages and injunction. The Justices etc. v. Griffin & West Point Plank Road Co., 15 Ga. 39, 61 (1854). “Whatever obstructs travel on a public highway or navigable stream, is a common nuisance, and may be abated by any of the king's subjects." So, where plaintiffs had fastened an old, disused and nearly sunken boat to a pier in such a way as to impede the navigation of the Chicago River, the defendants, acting under the authority of the Board of Public Works, had the right to remove it as a public nuisance; if indeed they did not have the right to do so without any orders. McLear v. Matthews, 7 Bradwell (Ill.) 599, 602 (1880). "It is well settled that when a corporation or an individual are bound to repair a public highway or navigable river, they are liable to indictment for the neglect of their duty. An indictment and an information are the only remedies to which the public can resort for a redress of their grievances in this respect. If an individual has suffered a particular injury, he may recover his loss by an action on the case." People v. Albany, 11 Wend. (N. Y.) 539, 543 (1834).

tions. (21)

For both of these, the person so obstructing, or such individuals as are bound to repair and cleanse them, or (in default of these last) the parish at large, may be indicted, distrained to repair and mend them, and in some cases fined. (22) And a presentment thereof by a judge of assize, etc., or a justice of the peace, shall be in all respects equivalent to an indictment. (o) Where there is a house or an enclosure made upon any part of the king's demesnes, or of a highway or common street, or public water, or such like public things, it is properly called a purpresture.(p)(23) 2. All those

(21) Railways have, by stat. 3 & 4 Vict. c. 97, and 5 & 6 Vict. c. 55, been very properly placed under the control and regulation of the state: a penalty is incurred for opening a railway without notice to the board of trade, and for obstructing the government inspector.-STEWART. (22) See State v. Chappell, 2 Hill (S. C. Law) **391, 393 (1834). "" There can be no question that a party, charged with causing or continuing a nuisance, is, upon conviction, to be punished by fine and imprisonment at common law." The judgment that the nuisance be abated, can only be rendered where it appears that the nuisance is continued to the finding of the indictment." State v. Noyes, 30 N. H. 279, 298 (1855). One who builds a canal across a highway may be indicted for such nuisance, because of the injury it causes the public. He is also liable in a civil suit to any person who may have sustained any special damage by the offence. Board of Com'rs v. Canal Co., 2 Ind. (Carter) 161, 163 (1850).

(23) The law governing the highways is now declared in the statutes 5 & 6 Wm. IV. c. 50. 12 & 13 Vict. c. 14. 61. 27 & 28 Vict. c. IOI.

24 & 25 Vict. c. 70. 28 & 29 Vict. c. 83.

25 & 26 Vict. c. 61. 28 & 29 Vict. c. 107. 39 & 40 Vict. c. 62.

26 & 27 Vict. c. 33 & 34 Vict. c. 41 & 42 Vict. c. & 49 Vict. c. 13.

73. 35 & 36 Vict. c. 85. 38 & 39 Vict. c. xciv. 77. 42 & 43 Vict. c. 39. 44 & 45 Vict. c. 72. 45 & 46 Vict. c. 27. 48 50 & 51 Vict. c. 19. 51 & 52 Vict. c. 41. 54 & 55 Vict. c. 63. 56 & 57 Vict. c. 32. 56 & 57 Vict. c. 73. 57 & 58 Vict. c. 37.

With respect to nuisances in general to highways, etc. by actual obstruction, it is to be observed that every unauthorized obstruction of the highway, to the annoyance of the king's subjects, is an indictable offence. 3 Camp. 227. Thus, if a wagoner, carrying on a very extensive concern, constantly suffers wagons to remain on the side of the highway on which his premises are situate an unreasonable time, he is guilty of a nuisance. 6 East, 427. 2 Smith, 424. And if stage-coaches regularly stand in a public street in London, though for the purpose of accommodating passengers, so as to obstruct the regular track of carriages, the proprietor may be indicted. 3 Camp. 224. So a timber-merchant occasionally cutting logs of wood in the street, which he could not otherwise convey into his premises, will not be excused by the necessity which, in choosing the situation, he himself created. 3 Camp. 230. It is even said that "if coaches on the occasion of a rout wait an unreasonable length of time in a public street, and obstruct the transit of his majesty's subjects who wish to pass through it in carriages or on foot, the persons who cause and permit such coaches so to wait are guilty of a nuisance." 3 Camp. 226; and see 1 Russell, 463. Nor is it necessary, in order to fix the responsibility on the defendant, to show 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 attractive spectacles, near a public street in London, which draws together a concourse of people, is a nuisance liable to be punished and abated. I Ventr. 169. I Mod. 76. Keb. S46. Bac. Abr. Nuisance. 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 wagon, 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. 2 Camp. 231. No length of time will legalize the nuisance. 7 East, 199. 3 Camp. 227. 6 East, 195; sed vid. [But see] Peake C. N. P. 91. If the party who has been indicted for a nuisance continue the same, he is again indictable for such continuance. 8 T. R. 142. Independently of any legal proceedings, 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.

2

kinds of nuisances (such as offensive trades and manufactures) which, when injurious to a private man, are actionable, are, when detrimental to the public, punishable by public prosecution, and subject to fine according to the quantity of the misdemeanor; and particularly the keeping of hogs in any city or market town is indictable as a public nuisance. (g) (24) All disorderly inns or ale-houses, bawdy-houses, gaming-houses, stage-plays, unlicensed booths, and stages for rope-dancers, mountebanks, and the like, are public nuisances, and may, upon indictment, be suppressed and fined. (r)(25) Inns in particu

(9) Salk. 460.

(r) 1 Hawk. P. C. 198, 225.

With respect to nuisances to water-courses by actual obstruction, any diversion of a public river, whereby the current is weakened and rendered incapable of carrying vessels of the same burden as it could before, is a common nuisance. Hawk. b. 1, c. 75, s. II. But if a ship or other vessel sink by accident in a river, although it obstruct the navigation, if the owner removes it in a reasonable time, it is not indictable as a nuisance. 2 Esp. 675. No length of time will legalize the nuisance, (6 East, 195, supra [Above]) and even the rightful existence of a weir of brushwood will not authorize the building one of stone in its room. 7 East, 199.

With respect to the punishment for nuisances to highways, etc., the offenders may be fined and imprisoned. Hawk. b. I, c. 75, s. 14. But no confinement or corporal punishment is now inflicted. The object of the prosecution is 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.-CHITTY.

(24) It is not essential, in order to constitute this a nuisance, that the smell, or other inconvenience complained of should be unwholesome: it is sufficient if it impairs the enjoyment of life or property. 1 Burr. 333. The material increase in a neighborhood

of noisome smells is indictable. Peake, Rep. 91.

To this class of public nuisances may be added that of making great noises in the streets in the night by trumpets or otherwise, (2 Stra. 704;) exhibiting monsters, (2 Ch. Ca. 110;) suffering mischievous animals, having notice of their propensity, to go loose, etc., (Dyer, 25. Vet. 171. 2 Salk. 662. I Vent. 295;) carrying about persons infected with contagious diseases. 4 M. & S. 73, 272, ante [Before] 162. But neither an old nor a new dovecote is a common nuisance. Hawk. b. I, c. 7, s. 8.-CHITTY. Concerning nuisances, see 34 & 35 Vict. c. 55, 91 et seq. [And the following].

(25) The keeping of bawdy-houses, gaming-houses, and disorderly houses of all descriptions, together with the unlawful pastimes there pursued, has been from time to time prohibited by various acts of parliament, (see them collected in Collyer's Criminal Statutes, Nuisances, 399, et seq. [And the following]) imposing various punishments and penalties upon offenders; and by the 3 Geo. IV. c. 114, such offenders are punishable by sentence of imprisonment with hard labor for any term not exceeding the term for which the court before which they are convicted may now imprison for such offences, either in addition to or in lieu of any other punishment which might have been inflicted on such offenders by any law in force before the passing of that act. The keeping of a cock-pit is an indictable offence at common law, (as are the other offences mentioned;) and a cock-pit has been held to be a gaming-house within the 33 Hen. VIII. c. 9, s. II. I Russell, 300. Bawdy-houses and gaming-houses are clearly nuisances in the eye of the law. I Russell, 299. Rex v. Higginson, 2 Burr. 1232. Rex v. Rogier, 2 D. & R. 431, I B. & C. 272. Playhouses are not in themselves nuisances, though by neglect or mismanagement they may be rendered so. 1 Hawk. P. C. c. 32, s. 7. But, all places for the exhibition of stage-entertainments must be licensed, (Rex v. Handy, 6 T. R. 286. where it was held that tumbling was not a stage-entertainment within that act;) and, by 25 Geo. II. c. 36, all unlicensed places kept for such entertainments are to be deemed disorderly houses.-CHITTY.

"But disorderly inns, gaming-houses, and the like, ordinarily erected in such places as are densely populated, or much frequented, are public nuisances-so regarded at common law. Hackney v. The State, 8 Ind. 494, 495 (1856). "Bishop says that the term disorderly house includes a bawdy-house, but this is hardly accurate, for while a bawdyhouse in common parlance is a disorderly house, there may be a disorderly house without being a brothel. The characteristics are distinct. The criminal action for the one is based upon the noise, confusion, etc., even though no incontinence is indulged, whereas the gravamen of the other is the keeping of lewd women for the promiscuous enjoyment of men, and is indictable though not a sound issue therefrom." Bailey's Onus Probandi, p. 461. Play-houses are not, when conducted properly, obnoxious to the criminal law,

lar, being intended for the lodging and receipt of travellers, may be indicted, suppressed, and the *inn-keepers fined, if they refuse to [*168 entertain a traveller without a very sufficient cause; for thus to frustrate the end of their institution is held to be disorderly behavior. (s) (26) Thus, too, the hospitable laws of Norway punish, in the severest degree, such inn-keepers as refuse to furnish accommodations at a just and reasonable price. (1) By statute 10 & 11 W. III. c. 17, all lotteries are declared to be public nuisances, and all grants, patents, or licenses for the same to be contrary to law. But, as state lotteries have, for many years past, been found a ready mode for raising the supply, an act was made, 19 Geo. III. c. 21, to license and regulate the keepers of such lottery-offices. (27) 5. The making (8) 1 Hawk. P. C. 225. (t) Stiernhook, de jure Sueon, l. 2, c. 9.

but if it be alleged and proved that such representations were put on the boards as were calculated to sap the morals of the community, or to shock the religious sense, the keepers or managers would be liable to punishment at common law; or when the performance is calculated to draw unusual crowds upon the streets, or by its very character, to produce loud noises. "Possibly skating rinks, as generally conducted, might be regarded as nuisances." Bailey's Onus Probandi, p. 462. “The keeping of bawdy-houses; the public exhibiting or publishing of obscene pictures and writings; the public utterance of obscene words; the indecent and public exposure of one's person or the person of another; and generally all acts of gross and open lewdness, are indictable at the common law." Bishop, Cr. L. 1, 500, p. 305. "A bawdy-house (or a house of ill-fame as it is sometimes called) is a house kept for the reception of persons who choose to resort to it for the purpose of illicit sexual intercourse, and is indictable at common law. But the house must be resorted to in common by other women than its keeper when a woman. It is immaterial "whether indecent or disorderly conduct is perceptible from the outside." Wharton, Cr. L. 2, 8 1449, ૐ p. 292. "All disorderly inns or ale-houses, bawdy-houses, gaming-houses, play-house, unlicensed or improperly conducted booths and stages for rope-dancers, mountebanks, and the like are public nuisances, and may therefore be indicted." Russell on Crimes, 1, *442. See Bryant v. Mead, 1 Cal. 441, 442, (1851). One who entertains strangers only occasionally, although he receives compensation for it, is not an inn-keeper; and if on such occasions gambling, drinking and fighting take place, he is not indictable as the keeper of a disorderly house. State v. Mathews, 2 Dev. & Bat. (N. C. Law) 424, 425 (1837). "The erection of any building which, from its disagreeable ordor or noxious effluvia, is offensive or unwholesome, may be a nuisance; but whether it is, or is not so, must depend upon circumstances. Two things are necessary to constitute the offence. First, that from the nature of the establishment, it may be an annoyance; and secondly, that from its situation it has actually become so." State v. Purse, 3 McCord (S. C. Law) *472, *474 (1828).

(26) "If the keeper of an inn refuse without sufficient grounds to receive a guest, he is liable to indictment. The author, with great respect, doubts whether this doctrine is applicable to hotels in this country, unless licensed. The burden requires evi

dence that the defendant kept or held himself out as keeping a hotel, and that he refused to receive the prosecutor as a guest. If on demand the price for entertainment is not paid, or if the party demanding hospitality was not, on account of any legal ground, a proper person to receive, e. g. one drunk, etc., this may be shown in defence." Bailey's Onus Probandi, p. 463.

(27) The 19 Geo. III. c. 21 was repealed by the 22 Geo. III. c. 47, which was repealed by 42 Geo. III. c. 52, s. 27.

By the 42 Geo. III. c. 119, ss. 1, 2, all lotteries called little goes are declared to be public nuisances; and if any one shall keep an office or place to exercise or expose to be played any such lottery, or any lottery whatever not authorized by parliament, or shall knowingly suffer it to be exercised or played at in his house, he shall forfeit 500l. The provision as to the offender being deemed a rogue and vagabond seems repealed by the 5 Geo. IV. c. 83, which contained a provision to that effect.

And, by sect. 5 of the 42 Geo. III. c. 119, if any person shall promise to pay any money or goods on any contingency relative to such lottery, or publish any proposal respecting it, he shall forfeit 100l. State lotteries are now abolished, by statute 6 Geo. IV.— CHITTY.

"A lottery may be defined to be any scheme whereby one, on paying money or other valuable thing to another, becomes entitled to receive from him such a return in value, or nothing, as some formula of chance may determine." Bishop Statutory Crimes, 2 ed. 952, pp. 532, 533.

and selling of fireworks and squibs, or throwing them about in any street, is, on account of the danger that may ensue to any thatched or timber buildings, declared to be a common nuisance by statute 9 & 10 W. III. c. 7, and therefore is punishable by fine. (28) And to this head we may refer (though not declared a common nuisance) the making, keeping, or carriage of too large a quantity of gunpowder at one time or in one place or vehicle, which is prohibited by statute 12 Geo. III. c. 61, under heavy penalties and forfeiture. (29) 7. Eaves-droppers, or such as listen under walls or windows, or the eaves of a house, to hearken after discourse, and thereupon to frame slanderous and mischievous tales, are a common nuisance, and presentable at the court-leet, (u) or are indictable at the sessions, and punishable by fine and finding sureties for their good behavior. (v) (30) 7. Lastly, a common scold, (31) communis rixatrix, (for our law-Latin confines it to the feminine gender,) is a public nuisance to her neighborhood. For which offence she may be indicted, (w) and, if convicted, shall (x) be sentenced to be placed in a certain engine of correction called the trebucket, castigatory, or cucking-stool, which, in the Saxon language, is said to signify the scolding-stool, though now it is frequently corrupted into ducking-stool, because the residue of the judgment

(u) Kitch. of Courts, 20.

(v) Ibid. 1 Hawk. P. C. 132.

(w) 6 Mod. 21.
(x) 1 Hawk. P. C. 198, 200.

(28) For the law concerning the manufacture of fireworks, see stat. 38 & 39 Vict. c. 17, 22 48 & 49. Any person who shall set fire to or shall wantonly let fly or throw any squib, rocket, serpent, or other firework within fifty feet of a carriage-way or cart-way, under the stat. 5 & 6 Wm. IV. c. 50, 72, shall forfeit any sum not exceeding forty shillings, beyond the damages occasioned by such act; and, by stat. 38 & 39 Vict. c. 17, % 80, to throw, cast, or fire any fireworks in or into any highway, street, thoroughfare, or public place renders the offender liable to a penalty not exceeding five pounds, and by the provisions of the statute 2 & 3 Vict. c. 47, 54, any person who shall commit a similar act, within the metropolitan police district is liable to forfeit forty shillings and be taken into custody by a public officer of such district without a warrant.

(29) By 54 Geo. III. c. 152, so much of the 12 Geo. III. c. 61, s. 21 as enacts that no person shall carry in any land or water carriage any other lading with gunpowder is repealed.

Erecting powder-mills or keeping powder-magazines near a town is a nuisance at common law. See 2 Burn, J. 24 ed. 758. 2 Stra. 1167.-CHITTY.

(30) A person who secretly and stealthily approaches near to the room occupied by the grand jury, while they are engaged in the performance of their duties, for the purpose of overhearing what is there said and done by the grand jury, is guilty of eavesdropping. State v. Pennington, 3 Head. (Tenn.) 299, 300 (1859).

See Russell on Crimes, I, *452. Archbold, Crim. Pl. & Pr. 2, *1771.

It was said in one of our courts that the offence consists, not in peeping or looking, which is not indictable, but in listening. (C. v. Lovett, 4 Pa. Law Jour. 5, 6.) The paucity of decisions upon this subject, and the infrequency of occasions for its prosecution, render further attempts at its elucidation undesirable. It never occupied much space in the law, and it has nearly faded from the legal horizon. Bishop, Cr. L. 1, ?? 1122-1124, p. 670. Bailey's Onus Probandi, p. 643.

"Eavesdropping may, in like manner, be indictable as a nuisance. It should, however, to be indictable at common law, be habitual, and combine the lurking about dwelling-houses, and other places where persons meet for private intercourse, secretly listening to what is said, and then tattling it abroad. The offence, it is said, may be committed by stealthily lurking around a grand jury and repeating their secret proceedings." Wharton, Cr. L. 2, 2 1445, p. 290.

(31) "A common scold is an indictable common-law nuisance. But it is not far amiss to say that a common scold is a woman who, by the practice of frequent scolding, disturbs the repose of the neighborhood." Bishop, Cr. L. 1, 22 1101, 102, p. 662. "We have few American precedents to the question (of punishment), but such as we have substitute fine and imprisonment for the ducking." Id. 943, p. 569. "A common scold is under the common law punishable, because of the tendency of the continual scolding to public disquiet." Bishop, Cr. L. 1, 8 540, p. 333. See Russell on Crimes, 1, *452.