State v. Beeman , 35 Me. 242 ( 1853 )

Wei.es, J.

— The indictment against the defendant is founded upon the statute, c. 1.64, $ 1, which provides, that “ the obstructing or incumbering by fences, buildings or otherwise, the public highways, private ways, streets, alleys, &c. shall be deemed nuisances,” &c. The way is described in the indictment to be a “common highway and public street.” The word highway has been defined to mean county way, and as not embracing a town way, unless the sense of the statute where the word is used would require such meaning. Its import, when not controlled by other language connected with, it, has boon limited by statute to a county way. Chap. 1, $ 3, rule 6 ; Cleaves v. Jordan, 34 Maine, 9. It is unnecessary to say what construction should be put upon it, as used in the chapter upon which the indictment is founded. For the word street means any public way, and embraces a town way, which is the one alleged to he incumbered by the defendant. The indictment was therefore maintained by proof of the obstruction of a town way. The indictment was good although the charge may be broader than the offence proved, for the accused may be acquitted of a part and found guilty of the residue, which alleges substantially an ofFence. R. S. c. 166, <§> 7.

The law of 1821, under which the town road in question was laid out in 1836, did not point out any mode by which notice should be given to the owner of the land. But it has been decided, that he was entitled to notice. Harlow v. Pike, 3 Greenl. 439. It appears, that notice was published in a newspaper, printed in the neighborhood of the defendant, of the intended location, three weeks before it was made ; and that his damages were paid to him. This testimony was sufficient to authorize the jury in finding notice. It does not appear, that any objection was then made by the defendant, that it was not received in due season.

The article relating to the acceptance of the way in the warrant of the selectmen calling the meeting of the town, gives a general description of the way, which they had laid out, and was sufficiently clear and explicit to call to it the attention of the inhabitants of the town. Any one desirous of more particular information in relation to the courses and terminations of the road, could examine the return of the location made by the selectmen.

There does not appear to have been but one town house, and the notification for the meeting to be held at the town house, must have been understood at the town house on Second street.

When the road was laid out, the law did not require, as it now does, that the location of the selectmen should be filed with the town clerk seven days at least before the meeting of the town.

The acquiescence on the part of the town in the incumbrance upon the road for so many years, would indicate a consent, that the defendant’s building should remain upon it. But that would not furnish a legal excuse. It is the record which shows the existence and boundaries of the road, and the selectmen had no lawful authority to allow the building to remain upon it. Exceptions overruled.

Shepley, G. J., and Howard and Hathaway, J. J., concurred.