Munson v. The People.

nuisance of all the good and lawful citizens of the State of New York dwelling thereabout, and all others passing and repassing on the said highway and near the said stagnant waters, and against the form of the statute in such cases made and provided, and against the peace of the People of the State of New York and their dignity.

EDWIN HICKS, District Attorney.

The defendants pleaded not guilty, and the issue came on to be tried before Hon. E. Darwin Smith, justice of the Supreme Court, and two associate justices, on the 15th November, 1859. After the testimony was closed, the presiding judge explained to the jury that the first count was for erecting, maintaining and continuing a dam which obstructed the flow of the water in the outlet, and thereby created alleged nui

sance.

That the second count assumed the existence of a dam, and was for raising the height of the dam, and thereby creating the difficulty complained of.

The judge further instructed the jury that the evidence did not warrant them in convicting the defendants under the second count in the indictment, and that their deliberations were to be confined to the evidence applicable to the first count of the indictment.

The jury, after being charged fully by the court upon the questions involved in the case, retired for consultation, and afterward rendered a verdict by which they found the defendants guilty.

Upon this verdict, judgment was then entered in the fol lowing words:

"Judgment ordered, 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."

H. O. Chesebro, for the plaintiffs in error, claimed that the judgment rendered by the Court of Oyer and Terminer upon the conviction, was unauthorized by the conviction and erro

Munson v. The People.

neous; that there being no averment in the first count that the defendants continued to maintain the dam at the time of the indictment, no judgment of abatement could be rendered; citing 1 Chitty's Cr. Law, 716, marg.; 2 Id., 607, note a, 610 to 618; 3 Arch. Cr. Pl., 609, 651, 6th ed.; 12 Petersdorff Abr., 795, marg.; Wharton's Cr. Law, § 2368; 1 Russell on Crimes, 331, marg.; 4 Black. Com., 168, note 12; King v. Stead, 8 Term R., 142; The King v. Pappineaux, 2 Strange, 686; 7 Term R., 467; 10 Foster R., 279; 21 Maine R., 84; 16 Ala. R., 144; 16 Conn. R., 54.

Wm. H. Smith (District Attorney), for defendants in error.

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 continuing a nuisance, created and maintained 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 erecting and maintaining the same nuisance. (The King v. Stead, 8 Durn. & East, 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 use, a nuisance, is a 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."

Munson v. The People.

The 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.

Munson v. The People.

The 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.

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Lord KENYON, 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 R. 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

Munson v. The People.

to 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 dam, 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.