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near the king's highway, it appeared in evidence that the smell was not only intolerably offensive, but also noxious and hurtful, giving many persons headaches. It was held, that it was not necessary that the smell should be unwholesome, but that it was enough if it rendered [ *740 ] the enjoyment of life and property uncomfortable. White's case, 1 Burr. So it is said that the carrying on of an offensive trade is indictable, where it is destructive of the health of the neighborhood, or renders the houses untenantable or uncomfortable (1). Davey's case, 5 Esp. 217. So it was ruled, by Abbott, C. J., in the case of an indictment for carrying on the trade of a varnish maker, that it was not necessary that a public nuisance should be injurious to health; that if there were smells offensive to the senses, it was enough, as the neighborhood had a right to pure and fresh air. Neil's case, 2 C. and P. 485 (a) (2).
Proof-with regard to situation.] A question of considerable difficulty frequently presents itself, as to the legality of carrying on an offensive trade in the neighborhood of similar establishments, and as to the length of time legalizing such a nuisance. Where the defendant set up the business of a melter of tallow in a neighborhood where other manufactories were established, which emitted disagreeable and noxious smells, it was ruled that he was not liable to be indicted for a nuisance, unless the annoyance was much increased by the new manufactory. B. Nevill's case, Peake, 91. And it has also been ruled, that a person cannot be indicted for continuing a noxious trade which has been carried on in the same place for nearly fifty years. S. Neville's case, Peake, 93. But upon this case it has been observed, that it seems hardly reconcileable to the doctrine, that no length of time can legalize a public nuisance, although it may supply an answer to an action by a private individual. 1 Russ. 297; vide post, p. 741. It should seem, continues the same writer, that, in judging whether a thing is a public nuisance or not, the public good it does may, in some cases, where the public health is not concerned, be taken into consideration, to see if it outweighs the public annoyance. With regard to offensive works, though they may have been originally established under circumstances which would prima facie protect them against a prosecution for a nuisance, it seems that a wilful neglect to adopt established improvements which would make them less offensive, may be indictable. 1 Russell, 297.
In a late case, of an indictment for carrying on the business of a horseboiler, it appeared that the trade had been carried on for many years before the defendants came to the premises; but its extent was much greater under them. For the defendants, it was shown that the neighborhood was full of horse-boilers and other noxious trades, and evidence was given of the trade being carried on in an improved manner. Lord Tenterden observing, that there was no doubt that this trade was in its nature a nuisance, said, that, considering the manner in which the neighborhood had always been occupied, it would not be a nuisance, unless it occasioned more inconvenience as it was carried on by the defendants than it had done before. He left it therefore to the jury to say whether
(1) Prout's case, 4 Rogers' Rec. 87.
(2) Case of Lynet & al., 6 Rogers' Rec. 61.
(a) Eng. Com. L. Rep. xii. 226.
there was any increase of the nuisance; if, in consequence of the alleged improvements in the mode of conducting the business, there was [*741] *no.increase of annoyance, though the business itself had increased, the defendants were entitled to an acquittal; if the annoyance had increased, this was an indictable nuisance, and the defendants must be convicted. Watts' case, Moo. and Mal. N. P. C. 281 (a).
If a noxious trade is already established in a place, remote from habitations and public roads, and persons afterwards come and build houses within the reach of its noxious effects; or if a public road be made so near it, that the carrying on of the trade becomes a nuisance to the persons using the road; in those cases, the party is entitled to continue his trade, because it was legal before the erecting of the houses in the one case, and the making of the road in the other. Per Abbott, C. J.; Cross's case, 2 C. and P. 483 (b).
Proof-with regard to length of time.] No length of time will legitimate a nuisance; and it is immaterial how long the practice has prevailed (1). Though twenty years user may bind the right of an individual, yet the public have a right to demand the suppression of a nuisance, though of longer standing. Weld v. Hornby, 7 East, 199. Thus upon an indictment for continuing a stell fishery across the river at Carlisle, though it appeared that it had been established for a vast number of years, yet Mr. Justice Buller held that it continued unlawful, and gave judgment that it should be abated. Case cited by Lord Ellenborough, 3 Campb. 227. So it is a public nuisance to place a woodstack in the street of a town before a house, though it is the ancient usage of the town, and leaves sufficient room for passengers, for it is against law to prescribe for a nuisance. Fowler v. Sanders, Cro. Jac. 446. In one case, however, Lord Ellenborough ruled, that length of time and acquiescence might excuse what might otherwise be a common nuisance. Upon an indictment for obstructing a highway by depositing bags of clothes there, it appeared that the place had been used as a market for the sale of clothes for above twenty years, and that the defendant put the bags there for the purpose of sale. Under these circumstances, Lord Ellenborough said, that after twenty years' acquiescence, and it appearing to all the world that there was a market or fair kept at the place, he could not hold a man to be criminal who came there under a belief that it was such a fair or market legally instituted. Smith's case, 4 Esp. 111.
Proof of particular nuisances—particular trades.] Certain trades, producing noxious and offensive smells, have been held to be nuisances, when carried on in a populous neighborhood, as making candles in a town by boiling stinking stuff, which annoys the whole neighborhood with stenches. Tohayle's case, cited Cro. Car. 510; but see 2 Roll. Ab. 139; Hawk. P. C. b. 1, c. 75, s. 10. And it seems that a brewhouse erected in such an inconvenient place that the business cannot be carried on without greatly incommoding the neighborhood, may be indicted as a common nuisance; and so in the case of a glass-house or swine-yard. Hawk. [ *742 ] P. C. b. 1, c. 75. *s. 10; Wigg's case, 2 Lord Raym. 1163. So
(1) Mills v. Hall, 9 Wend. 315.
(a) Eng. Com. Law Rep. xxii. 307. (b) Id. xii. 226.
a manufactory for making spirit of sulphur, vitriol, and aqua fortis, has been held indictable. White's case, 1 Burr. 333. White's case, 1 Burr. 333. So a tannery where skins are steeped in water, by which the neighboring air is corrupted. Pappineau's case, 2 Str. 686.
Proof of particular nuisances-corrupting the waters of public rivers.] In Medley's case, 6 C. and P. 292, the chairman, deputy-chairman, superintendent, and engineer of the Equitable Gas Company were found guilty on an indictment for conveying the refuse of gas into the Thames, whereby the fish were destroyed, and the water was rendered unfit for drink, &c. Lord Denman, C. J., told the jury, that the question for them was, whether the special acts of the company amounted to a nuisance. See this case in another point, post, p. 746.
Proof of particular nuisances—railways—steam-engines,&c.] Where an act of parliament gave a company power to make a railway, and another act gave unqualified power to use locomotive steam-engines on the railway, and the railway was constructed in some parts within five yards of a highway; upon an indictment for a nuisance, stating that horses passing along the highway were terrified by the engines, it was held that this interference with the rights of the public must be presumed to have been sanctioned by the legislature, and that the benefit derived by the public from the railway showed that, there was nothing unreasonable in the act of parliament giving the powers. Pease's case, 4 B. and Ad. 30 (a). But when the defendant, the proprietor of a colliery, without the authority of an act of parliament, made a railway from his colliery to a sea-port town, upon the turnpike way, which it narrowed in some places, so that there was not room for two carriages to pass, although he gave the public (paying a toll) the use of the railway, yet it was held that the facility thereby afforded to traffic was not such a convenience as justified the obstruction of the highway. Morris's case, 1 B. and Ad. 441 (b).
The proceedings in indictments for nuisances by steam-engines are regulated by statute 1 & 2 Geo. 4, c. 41. By sec. 1, the court by which judgment ought to be pronounced in case of a conviction upon any such indictment (viz. for a nuisance arising from the improper construction or negligent use of furnaces employed in the working of steam-engines), is authorized to award such costs as shall be deemed proper and reasonable to the prosecutor, such award to be made before or at the time of pronouncing final judgment. And by the second section, if it shall appear to the court by which judgment ought to be pronounced, that the grievance may be remedied by altering the construction of the furnace, it shall be lawful, without the consent of the prosecutor, to make such order touching the premises as shall by the court be thought expedient for preventing the nuisance in future, before passing final sentence. By the third section the act is not to extend to furnaces erected for the purposes of working mines.
*Proof of particular nuisances-acts tending to produce public [*743] disorder acts of public indecency.] Common stages for rope-dancers, and common gaming-houses, are nuisances in the eye of the law, not only be
(a) Eng. Com. L. Rep. xxiv. 17. (b) Id. xx. 421.
cause they are great temptations to idleness, but because they are apt to draw together great numbers of disorderly persons, to the inconvenience of the neighborhood. Hawk. P. C. b. 1, c. 75, s. 6. So collecting to gether a number of persons in a field, for the purpose of pigeon-shooting, to the disturbance of the neighborhood, is a public nuisance. Moore's case, 3 B. and Ad. 184 (a), see this case more fully, post, p. 746.
It is upon this same principle that many of the acts after-mentioned have been held to be public nuisances.
What outrages public decency, and is injurious to public morals, is indictable as a misdemeanor (1). Hawk. P. C. b. 1, c. 75, s. 4; 1 Russell, 302. Thus bathing in the open sea, where the party can be distinctly seen from the neighboring houses, is an indictable offence. Crunden's case, 2 Camp. 89; Sedley's case, Sid. 168.
Proof of particular nuisances-disorderly inns.] Every one, at common law, is entitled to keep a public inn, (but if it be an ale-house, he comes within the statute concerning ale-houses ;) and may be indicted and fined as guilty of a public nuisance, if he usually harbor thieves, or suffer frequent disorders in his house, or take exorbitant prices, or refuse to receive a traveler as a guest into his house, or to find him victuals, upon the tender of a reasonable price. Hawk. P. C. b. 1, c. 78, s. 1, 2. It is said also, that setting up a new inn, where there is already a sufficient number of ancient and well-governed inns, is a nuisance. Id. 3 Bac. Ab. Inns, (A.). 1 Russell, 298 (2).
Proof of particular nuisances-gaming-houses.] In Dixon's case, 10 Mod. 336, it was held that the keeping of a gaming-house was an offence at common law as a nuisance. The keeping a common gaminghouse is an indictable offence, for it not only is an encouragement to idleness, cheating, and other corrupt practices, but it tends to produce public disorder by congregating numbers of people. Hawk. P. C. b. 1, c. 75, s. 6; 1 Russell, 299. A feme covert may be convicted of this offence. Hawk. P. C. b. 1, c. 92, s. 30. Keeping a common gaming-house, and for lucre and hire unlawfully causing and procuring divers evil-disposed persons to frequent and come to play together a certain game called rouge et noir, and permitting the said idle and evil-disposed persons to remain, playing at the said game, for divers large and excessive sums of money, is a sufficient statement of an offence indictable at common law. Rogier's case, 1 B. and C. 272 (b): and per Holroyd, J., it would have been sufficient merely to have alleged that the defendant kept a common gaminghouse. Ibid.
So in Mason's case, 1 Leach, 548, Grose, J., seemed to be of opinion that the keeping of a common gaming-house might be described generally. See also Taylor's case, 3 B. and C. 502 (c).
[ *744 ] *It seems that the keeping of a cockpit is not only an indictable
(1) Knowles v. The State, 3 Day's Cas. 103.
(2) As to disorderly houses, 1 Wheeler's C. C. 290. May be proved by general reputation. Rathbone's case, 1 Rogers' Rec. 27. But see Commonwealth v. Stewart, 1 S. & R. 342. The keeping of a disorderly house must be laid as a common nuisance. Hunter v. The Commonwealth, 2 S. and R. 298.
(a) Eng. Com. L. Rep. xxiii. 52. (b) İd. viii. 75. (c) Id. x. 166.
offence at common law, but such places are considered gaming-houses within the statute 32 Hen. 8, c. 9. Hawk. P. C. b. 1, c. 92, s. 92.
The proceedings against persons keeping gaming-houses, bawdy-houses, or disorderly houses, are facilitated by the statute 25 Geo. 2, c. 36, by the eighth section of which it is enacted, that any person who shall appear, act, or behave as the master or mistress, or as the person having the care, government, or management of any bawdy-house, gaming-house, or other disorderly house, shall be deemed and taken to be the keeper thereof, and shall be liable to be prosecuted and punished as such, notwithstanding he or she shall not in fact be the real owner or keeper thereof. By section 9, inhabitants of the parish or place, though bound by recognizance, may give evidence upon the prosecution. By section 10, no indictment shall be removed by certiorari. This clause does not prevent the crown from removing the indictment. Davies's case, 5 T. R. 626.
After an indictment has been preferred by a private prosecutor, the court will allow any other person to go on with it even against the consent of the prosecutor. Wood's case, 3 B. and Ad. 657 (a).
Proof of particular nuisances—bawdy-houses.] The keeping of a bawdy-house is a common nuisance, both on the ground of its corrupting public morals, and of its endangering the public peace, by drawing together dissolute persons (1). Hawk. P. C. b. 1, c. 74, s. 1; 5 Bac. Ab. Nuisances, (A); 1 Russell, 299. A feme covert is punishable for this offence as much as if she were sole. Ibid. Williams's case, 1 Salk. 383. And a lodger, who keeps only a single room for the use of a bawdry, is indictable for keeping a bawdy-house; see Pierson's case, 2 Lord Raym. 1197; but the bare solicitation of chastity is not indictable. Hawk. P. C. b. 1, c. 74, s. 1 (2).
Though the charge in the indictment is general, yet evidence may be given of particular facts, and of the particular time of these facts, see Clarke v. Periam, 2 Atk. 339, it being, in fact, a cumulative offence, vide ante, p. 82. It is not necessary to prove who frequents the house, which in many cases it might be impossible to do, but if unknown persons are proved to have been there, conducting themselves in a disorderly manner, it will maintain the indictment. J'Anson v. Stuart, 1 T. R. 754; 1 Russell, 302.
When the house is described as being situated in a particular parish, this being matter of description, must be proved as laid.
The proceedings in prosecutions against bawdy-houses are facilitated by the statute 25 Geo. 2, c. 36, supra.
Proof of particular nuisances-play-houses, &c.] Play-houses having been originally instituted for the laudable design of recommending virtue to the imitation of the people, and exposing vice and folly, are not nuisances in their own nature, but may become so by drawing *to- [*745 ] gether numbers of people, to the inconvenience of the neighborhood (3). Hawk. P. C. b. 1, c. 75, s. 7, see 2 B. and Ad. 189 (b).
(1) Darling v. Hubbell, 9 Conn. 350. Letting a house to a woman of ill fame, knowing her to be such, is an indictable offence at common law. Commonwealth v. Harrington, Pick. 26. See Brooks v. The State, 2 Yerger, 482.
(2) Contra, State v. Avery, 7 Conn. 267.
(3) People v. Baldwin, 1 Wheeler's C. C. 281.
(a) Eng. Com. L. Rep. xxiii. 154. (b) Id. xxiii. 55.