State v. Peckard

5 Del. 500

• Court: Superior Court of Delaware
• Decided: July 5, 1854
• Status: Published

Opinion

INDICTED for obstructing a highway — "Clinton street, Delaware City."

It, was admitted that the street was a highway, and the defendant did the acts complained of. The question was, whether it amounted to a nuisance.

Defendant hauled one hundred to one hundred and fifty loads of earth from the road on to private property. He cut down below the established grade. The commissioners notified him several times to desist, which he refused to do.

The leveling of this place by the defendant was an improvement to the street, a convenience to the public generally.

Bayard, Jr., contended that the removal of the earth was no nuisance, if it did not disturb the streets or render them less passable.

Mr. Gordon said the act gave power to the commissioners to establish grades, and the question was whether this interference with their authority was not a nuisance.

Question by the Court. — Does the act make it so? Does it make the act of disturbing the grade lines indictable?

If the commissioners are resisted or obstructed in the exercise of their office, that is an indictable offence, but no nuisance: if the public earth is taken away, that is a trespass; but to make out a case of nuisance it must amount to an obstruction of the street, something that renders it less convenient to the public generally.

Verdict not guilty.