State v. Sturdivant , 21 Me. 9 ( 1842 )

The opinion of the Court was drawn up by

Whitman C. J.

■ — To the indictment, which is against the defendant for erecting a public nuisance, obstructing the navigation of Portland harbor, he demurs; and assigns his causes of demurrer. The first is, that the indictment does not contain a sufficient description of the bounds, termini and location of Portland harbor; nor of the place in the harbor where the nuisance is alleged to be. But it has been often determined, that it is not necessary to describe the termini and width of a highway in indictments for erecting nuisances thereon ; nor otherwise to describe its location, than by alleging it to be in some known place, within the county; and so that if it should be required of the sheriff or other officer, charged with the execution of final process, to abate it, he might be enabled to act understandingly in doing it; and, at the same time, so that the accused should not meet with unreasonable difficulty in knowing or ascertaining the place intended; and, if there be any difficulty in any such particular, that advantage can be taken of it by plea in abatement. Rex v. Hammond, 1 Str. 44; Rex v. Hammersmith, ib. 357 ; Rex v. Pappineau, 2 ib. 686 ; Rex v. White & al. 1 Burr. 333 ; Commonwealth v. Hall & al. 15 Mass. R. 240.

Portland harbor is a place known to a common intent; and it is averred, in the indictment, that the part of it, in which the offence is alleged to have been committed, is in the county of Cumberland. The government must prove that the defendant erected the nuisance as alleged, or fail in their prosecution. It does not appear, and may not be a fact, that the part of Portland harbor, in which the obstruction was erected was within the bounds of the city of Portland, or of any other town; and in such case could not be described as being in any such place; and the place, where the erection was, must be described in a manner that shall be certain to a common intent, and be averred to be within the county ; and the indictment describes it as having been erected in a part of Portland harbor, within the county of Cumberland.

But it is further alleged, as a cause of demurrer, that the nuisance itself is defectively described. The allegation in the indictment is, that it was a part of a wharf, owned by the defendant, and known by the name of Weeks’ wharf. The nuisance complained of should undoubtedly be so described, that it can be abated, without doing violence, unreasonably to the rights of other persons. The nuisance is alleged to consist of a part of a wharf. It is to be presumed that the residue of the wharf is no nuisance ; and ought not to be unnecessarily injured in removing the part complained of; and much less ought it to be endangered by the want of accuracy in the description of the part complained of. Now what is the part intended to be described in the indictment as a nuisance ? Is it at one end or at the other ? or on one side or the other of the wharf? It does seem to be important that this should be clearly indicated ; and that the part offending should be distinguishable from that which is innocent. It is said to be a part of a wharf, owned by the defendant. Suppose it to be a fact, that he owns but a part of the wharf, in what way is it to be ascertained what part he does own? But sup-' pose he owns the whole of the wharf, the description will be left still more indefinite. It can scarcely be contended that, the place called Weeks’ wharf covers but a part of the wharf, and therefore is descriptive of the part against which the indictment was intended to be found. On the whole, it does seem that this description is too vague, uncertain and indeterminate. And the indictment for that cause must be adjudged bad.