By the Court, Knox, J.
At the Oyer and Terminer, the jury were instructed by the presiding justice, that the evidence did not warrant a conviction upon the second count in the indictment, which was for a nuisance. A person may be indicted for causing, erecting, and maintaining a nuisance; and he may also be indicted for contimdng a nuisance, created and main- ■ tained by another, or which was created by himself. They are distinct offenses. It evidently would not be a bar to an indictment for continuing a nuisance, that the party had been convicted of electing and maintaining the same' nuisance. (The King v. Stead, 8 Durn. & Fast, 142.) In Staple v. Spring and al. (10 Mass. R., 75),- Sewall, J., says: “ An action of the case lies against him who erects a nuisance, and against him who continues a nuisance erected by another. The occupant as well as the owner of the place, suppose a house or mill, erected to the nuisance of another, is liable in the action of the case, which -may be brought by the successive owners and occupants of the place where the injury is sustained. In short, the continuance, and every use of that which is, in its erection and usé, a nuisance, is á new nuisance, for which the party injured has a remedy for his damages. And although after judgment and damages recovered in an action for erecting a nuisance, another action is not to be maintained for the erection, yet another action will lie for the continuance of the same , nuisance.”
[23]*23The same has been held in this State. (2 Kern. R., 492 ; 29 Barb. R., 294; see also Bouvier Inst., 2d vol., 577.) These cases are cited, and many more might be, to show that, both in criminal and civil actions, the distinction above mentioned is well recognized. Indeed, no authorities are requisite, for it exists in the nature of things.
The. count, in the indictment upon which the defendants were convicted, being the first, was for having erected and maintained a nuisance.- There is no averment that it continued down to the time of the indictment. For aught that appears in the count, the nuisance had ceased to exist when the indictment was found, and that the only object of the people was to punish the defendants for what they had done, and not for what they continued to do.
The averments in regard to the erection of the nuisance are all in the past tense.
The judgment upon the verdict was, “That the-defendants abate the nuisance, at their own cost, within sixty days, and that, in default thereof, process issue to the sheriff of the county, commanding him to abate the nuisance at the cost of the defendants.”
The defendants allege that this judgment was unauthorized by the conviction, and erroneous. I am of that opinion. Suppose the fact to be, as it may be, that when the indictment. was found, the dam had -been pulled down, and the nuisance abated? Obviously, the sheriff, with the precept to abate what'did not exist, would be sent on a “ fool’s errand,” and the defendants would go wholly unpunished. It might be true in a case where a person was indicted for continuing a nuisance, that before the trial and conviction, the nuisance had been abated, so that a mere judgment to abate would not punish the defendant. There would be, however, congruity upon the record; besides, in such a case, upon proof that the nuisance had been abated, the court might order the defendants to be fined or" imprisoned. Here, then, is manifest incongruity.
[24]*24The 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 in the proceedings is stated as continuing, in addition to a fine, to order the defendant, at his own costs, to abate the nuisance.” (2 Strange, 686; Black. Com.,vol. 2, Book 4, p. 167; Sharswood’s ed. in note.)
The case before cited from Term Reports was this: William and John Stead were indicted for erecting a.wall across a highway, and found guilty at the Quarter Sessions, which directed a precept to the sheriff to abate the nuisance, and afterward the same court adjudged that the defendants be fined six pence each for said nuisance and be discharged. A writ of error was brought, and it was assigned for error that the court-below had not ordered that the nuisance be abated. France urged that such a judgment was proper, though the indictment did not charge the nuisance as continuing. Lambe, contra, was stopped by the court.
Lord Kenton, Ch. J.:
“ When this case came before -us on the former occasion, we intimated a strong opinion that the judgment given below was not erroneous, and I am now clearly of the same opinion. When a defendant is indicted for an existing nuisance, it is usual to state the nuisance and its continuance down to the time of taking the inquisition; it was so stated in B. v. Pappineau, et adhuc existit; and, in such cases, the judgment should be that the nuisance be abated. But, in this case, it does not appear in the indictment that the nuisance was then in existence; and it would be absurd to give judgment to abate a supposed nuisance which does not exist. If, however, the nuisance still continue, the defendant may be again indicted for continuing it.
But if it be, it seems extraordinary that the prosecutor did not adopt the usual form of indictment. There is something of novelty indeed in another part of these proceedings, for it appears, that before judgment was given at the sessions, a precept was issued to the sheriff in the nature of an execution ; then afterward a proper judgment was given, adapted [25]*25to the circumstances of the case. The defendants having erected a nuisance, were fined by the court, but as there was no existing nuisance (for none such then appeared), of course no judgment was given to abate it.
Grose, J., of the same opinion.
Lawrence, J.
What was said by Mr. J. Reynolds in R. v. Pappineau is decisive, “ that every judgment should be adapted to the nature of the case; when the erection is the nuisance, there ought to -be a demolition ; that is, where the nuisance exists at the time of the judgment. But in this case, the charge only is, that the defendant at a time which was past, had erected a wall across the highway, which was a nuisance; but to adjudge that a nuisance which does not exist, should be abated, would not be a judgment adapted to the nature of the case. With respect to proceedings on writs of assize of nuisance, &c., those are cases in which from the nature of the proceedings the nuisance is supposed still to continue.”
It is to be regretted that the indictment did not contain a count for continuing the nuisance, if such were the fact, because the view here taken may render it necessary, perhaps, to have another trial on a new indictment, alleging such offense. But on another trial, not only the rights of the public may be protected, but the property of the defendants saved from that total destruction, with which it is threatened by the judgment pronounced in this case. A mill-dam, owned by the defendants, was the nuisance. Whether its demolition is necessary, to get rid of the nuisance, is Very doubtful, on the evidence.
Free access — add to your briefcase to read the full text and ask questions with AI
By the Court, Knox, J.
At the Oyer and Terminer, the jury were instructed by the presiding justice, that the evidence did not warrant a conviction upon the second count in the indictment, which was for a nuisance. A person may be indicted for causing, erecting, and maintaining a nuisance; and he may also be indicted for contimdng a nuisance, created and main- ■ tained by another, or which was created by himself. They are distinct offenses. It evidently would not be a bar to an indictment for continuing a nuisance, that the party had been convicted of electing and maintaining the same' nuisance. (The King v. Stead, 8 Durn. & Fast, 142.) In Staple v. Spring and al. (10 Mass. R., 75),- Sewall, J., says: “ An action of the case lies against him who erects a nuisance, and against him who continues a nuisance erected by another. The occupant as well as the owner of the place, suppose a house or mill, erected to the nuisance of another, is liable in the action of the case, which -may be brought by the successive owners and occupants of the place where the injury is sustained. In short, the continuance, and every use of that which is, in its erection and usé, a nuisance, is á new nuisance, for which the party injured has a remedy for his damages. And although after judgment and damages recovered in an action for erecting a nuisance, another action is not to be maintained for the erection, yet another action will lie for the continuance of the same , nuisance.”
[23]*23The same has been held in this State. (2 Kern. R., 492 ; 29 Barb. R., 294; see also Bouvier Inst., 2d vol., 577.) These cases are cited, and many more might be, to show that, both in criminal and civil actions, the distinction above mentioned is well recognized. Indeed, no authorities are requisite, for it exists in the nature of things.
The. count, in the indictment upon which the defendants were convicted, being the first, was for having erected and maintained a nuisance.- There is no averment that it continued down to the time of the indictment. For aught that appears in the count, the nuisance had ceased to exist when the indictment was found, and that the only object of the people was to punish the defendants for what they had done, and not for what they continued to do.
The averments in regard to the erection of the nuisance are all in the past tense.
The judgment upon the verdict was, “That the-defendants abate the nuisance, at their own cost, within sixty days, and that, in default thereof, process issue to the sheriff of the county, commanding him to abate the nuisance at the cost of the defendants.”
The defendants allege that this judgment was unauthorized by the conviction, and erroneous. I am of that opinion. Suppose the fact to be, as it may be, that when the indictment. was found, the dam had -been pulled down, and the nuisance abated? Obviously, the sheriff, with the precept to abate what'did not exist, would be sent on a “ fool’s errand,” and the defendants would go wholly unpunished. It might be true in a case where a person was indicted for continuing a nuisance, that before the trial and conviction, the nuisance had been abated, so that a mere judgment to abate would not punish the defendant. There would be, however, congruity upon the record; besides, in such a case, upon proof that the nuisance had been abated, the court might order the defendants to be fined or" imprisoned. Here, then, is manifest incongruity.
[24]*24The 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 in the proceedings is stated as continuing, in addition to a fine, to order the defendant, at his own costs, to abate the nuisance.” (2 Strange, 686; Black. Com.,vol. 2, Book 4, p. 167; Sharswood’s ed. in note.)
The case before cited from Term Reports was this: William and John Stead were indicted for erecting a.wall across a highway, and found guilty at the Quarter Sessions, which directed a precept to the sheriff to abate the nuisance, and afterward the same court adjudged that the defendants be fined six pence each for said nuisance and be discharged. A writ of error was brought, and it was assigned for error that the court-below had not ordered that the nuisance be abated. France urged that such a judgment was proper, though the indictment did not charge the nuisance as continuing. Lambe, contra, was stopped by the court.
Lord Kenton, Ch. J.:
“ When this case came before -us on the former occasion, we intimated a strong opinion that the judgment given below was not erroneous, and I am now clearly of the same opinion. When a defendant is indicted for an existing nuisance, it is usual to state the nuisance and its continuance down to the time of taking the inquisition; it was so stated in B. v. Pappineau, et adhuc existit; and, in such cases, the judgment should be that the nuisance be abated. But, in this case, it does not appear in the indictment that the nuisance was then in existence; and it would be absurd to give judgment to abate a supposed nuisance which does not exist. If, however, the nuisance still continue, the defendant may be again indicted for continuing it.
But if it be, it seems extraordinary that the prosecutor did not adopt the usual form of indictment. There is something of novelty indeed in another part of these proceedings, for it appears, that before judgment was given at the sessions, a precept was issued to the sheriff in the nature of an execution ; then afterward a proper judgment was given, adapted [25]*25to the circumstances of the case. The defendants having erected a nuisance, were fined by the court, but as there was no existing nuisance (for none such then appeared), of course no judgment was given to abate it.
Grose, J., of the same opinion.
Lawrence, J.
What was said by Mr. J. Reynolds in R. v. Pappineau is decisive, “ that every judgment should be adapted to the nature of the case; when the erection is the nuisance, there ought to -be a demolition ; that is, where the nuisance exists at the time of the judgment. But in this case, the charge only is, that the defendant at a time which was past, had erected a wall across the highway, which was a nuisance; but to adjudge that a nuisance which does not exist, should be abated, would not be a judgment adapted to the nature of the case. With respect to proceedings on writs of assize of nuisance, &c., those are cases in which from the nature of the proceedings the nuisance is supposed still to continue.”
It is to be regretted that the indictment did not contain a count for continuing the nuisance, if such were the fact, because the view here taken may render it necessary, perhaps, to have another trial on a new indictment, alleging such offense. But on another trial, not only the rights of the public may be protected, but the property of the defendants saved from that total destruction, with which it is threatened by the judgment pronounced in this case. A mill-dam, owned by the defendants, was the nuisance. Whether its demolition is necessary, to get rid of the nuisance, is Very doubtful, on the evidence. It would seem, rather, that it could be kept up at some height, so as to furnish water to the defendant’s mill, without producing the bad effects complained of. Were the sheriff to execute the precept, he might find it very difficult to decide how much, if. any, of the darn, he might allow to remain. But on a new trial, if the defendants shall be convicted of continuing the nuisance, the judgment may be, that only so much of the dam as causes the nuisance be prostrated.
[26]*26This may be determined by the jury upon the evidence given upon that question. See 1 Russell on Crimes, p. 331.
“ As the Oyer and Terminer isA permanent and continuous court, so that each session of such court, in any county, instead of being a distinct and independent court, the existence of which commences the first, and terminates with the last day of the session, is a mere term of the Oyer and Terminer for that county” (Quimbo Appo v. The People, 20 N. Y. R., p. 531, Selden, J.), the proper judgment at the next session of the court may be pronounced upon the conviction under this indictment.
The judgment of the Oyer and Terminer must therefore be reversed, and proceedings remitted to pass proper sentence.