State v. Phipps

4 Ind. 515, 1853 Ind. LEXIS 178

• Court: Indiana Supreme Court
• Decided: December 16, 1853
• Status: Published

Opinion

Roache, J.

Indictment against the defendant for erecting and maintaining a public and common nuisance. The charge is, that the defendant built a mill-dam across Rattle-Snake creek, in the county of Owen, and thereby overflowed a public highway, whereby the latter was obstructed, to the great damage, injury, and common and public nuisance, &c.

The Circuit Court quashed the indictment.

That such an obstruction of a public highway is a common nuisance there can be no question. 1 Hawk. P. C. —4 Blacks. Com. 167.—The State v. Miskimmons, 2 Ind. R. 440.

R. A. Riley, N. B. Taylor and J. Coburn, for the state.

The fact that the defendant may have had his writ of ad quod damnum, and acquired a right to the use of the land of individuals for the purpose of flowing the water upon it, is no defence to the indictment. See R. S. 1843, p. 974, s. 66. Nor would even a prescription from a twenty years’ continuance of the nuisance be of any avail to him. Mills v. Hall, 9 Wend. 315.

For such a nuisance, the party is liable to be indicted. See The State v. Virt, 3 Ind. R. 447.

The defendant has not thought proper to inform us by a brief what are the grounds of his objection to the indictment—the points embraced in this opinion being those discussed by the counsel for the state.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.