Commonwealth v. Blaisdell

107 Mass. 234

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1871
• Status: Published

Opinion

Gbay, J.

Placing or maintaining a building, stones or other obstructions in a public highway, without lawful authority, is a nuisance at common law, and indictable as such. Commonwealth v. King, 13 Met. 115. Stoughton v. Porter, 13 Allen, 191. Rose. Crim. Ev. (6th ed.) 541. By the statute provisions now in force, which took effect from and after December 31,1839, when the boundaries of a highway are made certain, (as they were in this case,) the continuance of a building in a highway cannot be justified by any length of time less than forty years, but may be indicted as a nuisance. Rev. Sts. c. 24, §§ 61, 62. Gen. Sts. c. 46, §§ 1, 2. This provision did not injuriously affect any private right, but merely shortened the period of limitation in such cases, which had previously been sixty years. St. 1786, c. 67, § 7. Cutter v. Cambridge, 6 Allen, 20. The front steps leading to a dwelling-house are clearly part of the building, and when they project into the highway, the building is in the highway, within the meaning of the statute. Hyde v. Middlesex, 2 Gray, 267, The instruction requested was therefore rightly refused.

Kxoeptions overruled.