State v. Berdetta , 73 Ind. 185 ( 1880 )

Elliott, J.

— This appeal is prosecuted by the State from a judgment acquitting the appellee of the offence of maintaining a public nuisance. The State seeks a review of the ruling of the court in refusing an instruction asked by the prosecuting attorney, and upon the question whether that, ruling was correct or not the case turns.

The instruction asked by the State and refused by the court-reads as follows : ‘ ‘If it is shown by the evidence beyond a reasonable doubt that Market street and the sidewalk thereof is situated in the city of Indianapolis, Marion county, Indiana, in a densely populated neighborhood, and constantly used by the citizens of said State for the purpose of passage and repassage as a public highway, and was so situated and used on the 12th day of May, 1880, and the defendant on that day was occupying and maintaining on said sidewalk a building of a permanent nature, of the length of twenty-three feet, and of the width of three feet eleven inches, and of the height of seven feet, and that said sidewalk was. fifteen feet wide, except where said building was situated, and that where said building was situated but eleven feet remained for the passage of said citizens of said State, you should find the defendant guilty, such an obstruction of a public highway being a nuisance within itself. ’ ’ Although this instruction was refused by the court, yet, upon its own motion, one was given precisely the same, except that the last clause was omitted, and the following clause substituted: “And that the obstruction essentially interfered with the comfortable enjoyment of said sidewalk.” The effect of this striking out and substitution was to very materially change the. meaning and force of the instruction. The theory of the instruction, as originally written, is very different from that asserted by the instruction as framed by the court. The instruction asked by the prosecution asserts that it is sufficient for the State to prove the existence of a permanent obstruction in the highway, while that framed by the court affirms that it is not sufficient to show the existence of such an obstruction, but that the State must show, in addition, that “it essentially interfered with the comfortable enjoyment of the sidewalk.”

A public street is a public highway, and a sidewalk is a jrart of the street. The Common Council, etc., v. Croas, 7 Ind. 9 : The State v. Mathis, 21 Ind. 277. The common-law* doctrine was that a public highway was a “way common and free to all the king’s subjects to pass and repass at liberty,” and that an unauthorized obstruction was indictable and punishable as a nuisance. Nor was it necessary to show anything more than that there was a permanent obstruction of the public way. The People v. Vanderbilt, 28 N. Y. 396 ; The State v. Woodward, 23 Vt. 92; Davis v. Mayor, etc., 14 N. Y. 506, 524; Commonwealth v. King, 13 Met. 115; Harrow v. The State, 1 Greene, Iowa, 439.

Counsel for appellee ar-gue with much force and ingenuity that the common-law doctrine does not prevail in Indiana, for the reason that our statute prescribes an essentially different rule. It is indeed true, as counsel assert, that we have no common-law offences, and that criminal prosecutions can only be maintained for such offences as are prescribed by statute. It does not, however, follow from this that there Is no such thing as an indictable public nuisance under our •statute. In Burk v. The State, 27 Ind. 430, it was held that there is such an offence, although the statute does not specifically define a public nuisance. In that case it was held that “The phrase ‘public nuisance’ had a very definite meaning in the law long before the statute was enacted.” If the •case cited should be followed to its logical consequences, it would require us to hold that what was at common law a public nuisance is such under our statute, and that permanently obstructing a highway is per se a public nuisance, because it was always such at common law. We hold this to be the correct ruling.

Upon the assumption of the appellee, that the State must show an unlawful act injurious to the citizens of the State, .and one which essentially interferes with either the free use ■of property or the comfortable enjoyment of life or property, the conclusion which he deduces is an incorrect one. The permanent obstruction of a public street is in itself an unlawful act, essentially interfering with the free use of property, as well as the comfortable enjoyment of life. The right of adjacent proprietors in and to the highway is one of which the Legislature itself can not deprive them without compensation ; nor can the municipal authorities, broad and comprehensive as their powers are, devote the street to private purposes. Haynes v. Thomas, 7 Ind. 38 ; St. Vincent O. Asylum v. City of Troy, 32 Am. R. 286. So far does this rule go that the municipality is itself guilty of maintaining a. public nuisance, if it place a permanent obstruction in a public street. Wartman v. City of Philadelphia, 33 Pa. St. 202 ; The State v. Laverack, 34 N. J. Law, 201. Even under the British form of government, the king had no power to authorize the permanent obstruction of a public highway. Vin. Abr., Tit. Nuisance. The existence of the permanent obstruction in the highway is, therefore, clearly such an unlawful act as injures the citizens who are lot-owners on the street, and who have a right, as an essential incident to the enjoyment of their property, to have the street maintained its full width, free from all obstructions of a permanent character. This is such a right as may be vindicated either by injunction or indictment, and its violation is established by evidence of a permanent encroachment upon the street. Smith v. The State, 3 Zab. 712; Moyamensing v. Long, 1 Pa. 143; Wood’s Law of Nuisances, sec. 252; Langsdale v. Bonton, 12 Ind. 467. It is upon the doctrine here affirmed, that the case of Pettis v. Johnson, 56 Ind. 139, proceeds. There, this court held that a stairway erected upon a public alley of a city, by express authority of the municipal officers, washer se a public nuisance, which an adjacent proprietor might have abated. The same general doctrine is declared in the late and well-considered case of Commonwealth v. Blaisdell, 107 Mass. 234. The conclusion upon principle, as well as from authority, must be, that, if the unlawful act of obstructing a public highway did not injure others than those owning real estate upon the street, such unlawful act would be, of itself, a public nuisance.

Broader and more comprehensive rights than those of adjacent proprietors, as well as a far more numerous class of citizens than those owning lots abutting on the street, are, .however, injuriously affected by the unlawful obstruction of .a public highway. All the citizens are affected, for “a highway,” to adopt one of the definitions found in the books, * ‘is a road which every citizen has a right to use.” The right to pass and repass upon a public highway is not restricted to any part, for “the public axe eixtitled, not oxxly to a free passage along the highway, but to a free passage along any pox'tion of it not ixx the actual use of some other traveller.” 1 Hawkixxs P. C., ch. 32, sec. 11; Angelí Highways, sec. 226. The saxxxe «doctrine is declared by this court in The City of Indianapolis v. Gaston, 58 Ind. 224, where it is held that the entire width of a sidewalk must be maintained conveixient and safe' for the use of travellei’s. In Sherlock v. Bainbridge, 41 Ind. 35, the same gexxeral principle is explicitly affirmed. The ■questioix, in all cases of the character of the pxresent, is not whether tx-avel was actually interfex’ed with, but whether there xvas an unlaxvful exxcroachment upxon a pxublic street by the erection of a pxermanent obstruction.

The citizens of the municipxality who are invested with the local government are all affected by the obstructioix of a street, because all, in the capxacity of taxpayers, are charged xvith the burdexx of so keeping the streets as that they may be used in safety by the citizens of the State. So far does "the law upon this subject extend that, evexx though the obstruction be pfiaced oxx the street by a wrong-doer, the municipality may, under some circumstances, be liable for any injuries which may be caused by such an obstructioix. It •can not be doubted that, in keepxing the streets clear and free from obstructions, all the taxpayers -of a municipality aré interested, and, therefore, the obstruction of a-street necessarily affects a very great number of the citizens of the State. In three different capacities, therefore, are the citizens affected by the permanent obstruction of a public .street, as adjacent owners, as taxpayers, and as citizens, having a right to use all of the public sidewalk not in the actual use of some other traveller.

Upon the facts hypothetically stated in the instruction, the rule of law must be that the obstruction is per se a nuisance, •or we might have on the same street, indeed on the same square, an obstruction pronounced by one jury to be a nui-sance, and another, of the same character and dimensions, by another jury, declared not to be a nuisance. If any other-rule than that insisted upon by the State is declared to be the law, then each particular case, although the facts should be identically the same, might be differently decided, the result in each case depending upon the peculiar views of the jury trying the cause.' The only just and safe rule is, that a permanent structure, materially encroaching upon a public street, in a thickly inhabited part of a large city, is a nuisance of itself. There is no injustice in this rule, because no doctrine is more reasonable or more firmly settled than that the streets of a city are for the use of the public, and that no -one can have a right to permanently divert a street, or any part of a street, to private purposes ; and one who does so divert a street ought not to be permitted to compel the State to show specifically that the enjoyment, life or property of some part of the citizens was essentially interfered with. The necessary consequence of the unlawful act is to essentially interfere with the enjoyment of life and property, and, this being so, it was the duty of the court to instruct the jury, as matter of law, that an obstruction of the character described in the State’s instruction was, of itself, a nuisance. If it be the law as it unquestionably is, that an unlawful encroachment upon a public highway, by the erection of a structure of a permanent character, in a populous part of a large city, is an act injuriously affecting all the abutters, taxpayers, and, indeed, all citizens of the State, there is no reason for instructing that the State must supplement the evidence of the character and location of the obstruction with evidence showing that it interferes with the comfortable enjoyment of the sidewalk.

The character and location of the obstruction being shown, it was the duty of the court to have told the jury, as a matter of law, that such an obstruction was a public nuisance. Unless the conclusion from the existence of the facts be deemed and treated as matter of law, the result will be a line of cases with precisely the same facts, but with diverse judgments, varying with the views of the jury by which each case is tried. The rule which must guide is one of law, and should be declared by the court; and, as the rule of law was correctly expressed in the instruction asked, it should have been given.

The instruction given by the court was of such a character as to convey to a man of ordinary capacity an incorrect view of the law applicable to the case. As we have already shown, the rule at common law is, beyond all question, that a permanent and material encroachment upon a public street is per se a nuisance, and as we have further shown, our statute does not change that rule, it must be held error to so instruct the jury as to lead them to believe that, in addition to showing the character, situation and surroundings of the obstruction, it was necessary for the State to show that the comfortable enjoyment of the sidewalk was essentially interfered with. But one inference can be drawn from the instruction of the court, and that is that there must be some other facts shown in addition to those stated in the instruction. Having hypothetically stated all the facts which it was incumbent upon the State to prove, the last clause of the instruction, reading as follows: “and that said obstruction essentially interfered with the comfortable use of the sidewalk,” is added, thus conveying to the jury the impression that something more than the facts recited in the instruction must be proved. If the facts stated in the part of the instruction preceding the clause just quoted were all that the State need prove, then, by adding that clause, an erroneous rule was declared, because that clause asserts that, in addition to the facts recited, the State must show some other fact or facts.

The distinction between the temporary occupancy of public streets for commercial or building purposes, and its permanent obstruction, is well illustrated in the leading case of Wood v. Mears, 12 Ind. 515. It is not doubted that sidewalks may, when authorized, be temporarily occupied for private purposes; but temporary occupancy for authorized private purposes is quite a different thing from the erection of a structure of a permanent character. But even with respect to temporary use of such streets, it must be borne in mind that it may go to the extent of becoming a public nuisance. Rex v. Russell, 6 East, 427; Commonwealth v. Passmore, 1 S. & R. 217; Palmer v. Silverthorn, 32 Pa. St. 65 ; Commonwealth v. Milliman, 13 S. & R. 403.

Appeal sustained, at costs of appellee.