State v. Haines , 30 Me. 65 ( 1849 )

Shepley, C. J.

— The defendant was indicted with another person for keeping a bowling alley for gain and common use.

The first question presented by the bill of exceptions is, whether the offence is sufficiently set forth in the indictment. A motion was made apparently with a design to have the indictment quashed. This was overruled, and the indictment was declared to be sufficient. The presiding Judge was under no obligation to decide such a question before the accused had been found guilty. ■ Then it could be properly presented by a motion in arrest. As such a motion can yet be made, the question may as well be considered-and decided.

The indictment contains two counts. Divested of theirx formal and expletive language the averments in the first count are, that the accused kept a bowling alley for gain, and procured or induced persons to frequent the same to play at bowls in the day and night time, to the great annoyance, damage and common nuisance of the citizens.

An averment, that the acts alleged are to the common nuisance without averments, which, being proved, will show, that the accused had been guilty of causing a nuisance, will not be sufficient. The allegation, that the alley was kept to the great annoyance and damage” of the citizens, without stating any particular acts that would occasion such annoyance or damage, is so general, that the accused could not be prepared to rebut the charge by proof.

The question therefore on this count is presented, whether the keeping of a bonding alley for gain and common use, as an inducement for persons to play on it in the day and night time, is a common nuisance.

A nuisance has been defined to be “ any thing, that worketh hurt, inconvenience, or damage.” 3 Bl. Com. 216. Erections made and occupied for certain purposes are by the law regarded as nuisances, without proof of any particular injury. The injury is considered to be inherent. Other erections wholly innoxious in their nature and usual occupation, may become .nuisances by being used in such a place or in such a manner, as to render the enjoyment of life and property in their neighborhood uncomfortable. Among those, which are held to be nuisances per se are stages for rope-dancing, for mountebanks, gaming houses and bawdy-houses. The law requires no particular allegations or proofs, that they are injurious to the community. The simple allegation, that such places or houses are kept ad commune nocumentum, is sufficient. Among those not regarded as common nuisances, without proof of their improper location or use, may be reckoned the trades of the soap-boiler, tallow-chandler, brewer and tanner. If a bowling alley kept for gain and common use is to be regarded as a common nuisance per se, the first count in the indictment is sufficient, otherwise it is not.

Hawkins states, that stages for rope-dancers, and gaming houses, are common nuisances “ not only because they are great temptations to idleness, but because they are apt to draw together great numbers of disorderly persons, which cannot but be very inconvenient to the neighborhood.” Hawk. P. C. B. 1, c. 75, $ 6, 7.

Bowling alleys appear to have been early regarded as analogous in character to stages for rope-dancing, probably because they produced similar results. Jacob Hall’s case. 1 Mod. 76. Hale, C. J. is reported to have said in that case, “ that in the eighth year of Charles the first Noy came into Court and prayed a writ to prohibit a bowling alley erected near St. Dunstan’s church, and had it.” It appears, that a writ was issued in the case referred to by Lord Hale to abate the bowling alley as a nuisance. 1 Yent. 169.

The “ hurt” or injury to the community, which has occasioned bowling alleys kept for gain and common use to be regarded as common nuisances, arises from their tendency to withdraw the young and inconsiderate from any useful employment of their time, and to subject them to various temptations. From their affording to the idle and dissolute encouragement to continue in their destructive courses. Clerks, apprentices and others are induced, not only to appropriate to them hours, which should be employed to increase their knowledge and reform their hearts, but too often to violate higher moral duties to obtain means to pay for the indulgence. Other bad habits are in such places often introduced or confirmed. The moral sense, the correct principles, the temperate, regular and industrious habits, which are the basis of a prosperous and happy community, are frequently impaired or destroyed. Bowling alleys without doubt may be resorted to by many persons without such injurious results. The inquiry is not what may be done at such places without injury to persons of fixed habits and principles, but what has been in the experience of man, their general tendency and result. The law notices the usual effect, the ordinary result of a pursuit or course of conduct, and by that decides upon its character. It need not be the necessary and inevitable result of a bowling alley kept for gain and common use, that it is thus injurious to the community, to make it a common nuisance. Mr. Justice Littledale, in the case of Rex v. Moore, 3 B. & Ad. 184, correctly said, “if it be the probable consequence of his act, he is answerable as if it were his actual object. If the experience of mankind must lead any one to expect the result, he will be answerable for it.” But the question was so fully examined and discussed by Mr. Justice Cowen, in the case of Tanner v. The Trustees of Albion, 5 Hill, 121, that it may be more useful to quote and adopt certain portions of that opinion, than to enter upon a more enlarged discussion of the question.

He says, “ so far as I have been able to discover, erections of every kind adapted to sports or amusements having no useful end, and notoriously fitted up and continued with the view to make a profit to the owner, are considered in the books as nuisances.

“ The tendency of the alley being well known, it was adjudged to be a nuisance of itself; and a writ accordingly issued to remove it without a trial.

“ The nuisance consists in the common and gainful establishment for the purpose of sports having the aptitude and ■tendency of which Hawkins speaks.

“ In general the law is not scrupulous about actual results. It sees, that a building has been erected for at least an idle purpose, the probable consequence of which will be pernicious. It does not stop therefore and call witnesses to prove, that it is so in fact.

“ The only argument I have heard urged in excuse for bowling alleys is, that the exercise of the players is conducive to health. In this respect such alleys have been compared with bath houses. The answer is, that there are various other kinds of exercise entirely equivalent, and if not, the means of playing with bowls are easily accessible without those public establishments carried on for hire, which the law has denounced as of evil tendency.”

■ If these views are correct, the first count in the indictment is sufficient.

But if that count should be regarded as defective, the second would seem to be sufficient to show, that the alley was a nuisance, because it was used in such a manner as to render the enjoyment of life and property, uncomfortable to those residing in its neighborhood.

It alleges, that the accused erected, continued and used a building for bowling with a bowling alley therein, near the dwellinghouses of divers citizens, to which persons are accustomed to resort to play at bowls in the day and night time, thereby occasioning great noises, damage, annoyances, and becoming and being injurious and dangerous to the comfort of divers individuals and the public. The only essential and distinguishing allegation in this count is, that great noises were made. „ The mere fact of occasioning such noises in the night time, to the disturbance of the neighborhood, has been decided to be a nuisance. Rex v. Smith, Stra. 704.

The next cause of complaint is, that the jury were instructed “that they were to judge from the evidence whether it was or not such a source of annoyance and disturbance to the neighborhood, and to the public generally, as to constitute it a common and public nuisance.” The objection is, that the jury were not informed, what facts were necessary to be proved to occasion it to be a common nuisance.

If the law had not been stated in the hearing of the jury during the trial, the counsel for the accused might have requested and obtained definite instructions respecting that matter. There is nothing in the instructions which were given, suited to lead the jury to an erroneous conclusion.

The remaining cause of complaint is, that the jury were instructed, if they should be satisfied “ that the defendant was the sole or joint owner of them, or that he was in the possession and had the care and control of the alleys by himself, or jointly with others, in either event he would be liable.”

Instructions must be considered with reference to the testimony. An owner of a bowling alley, who had not used it or authorized its use for gain and common use, or in such a manner as to occasion noise or disorder, might not be liable for such unauthorized use of it, by another. No such question was presented in this case. The particular error alleged is, that the instructions did not require that the possession and control of the alley should appear to have been with the sanction of the owner.”

Surely one, who should obtain possession of property by trespass or disseizin, and use it in such a manner as to occasion it to be a common nuisance, could not interpose the unlawful acts, by which he obtained and held possession, as an excuse or justification of his subsequent unlawful conduct.

It is further insisted, that some greater interest than that arising out of possession and control of the property should have been required to enable the Court on conviction, to abate the alley as a nuisance according to the provisions of the statute. chap. 164, <§> 7.

The case cited by the counsel shows, that a tenant may be liable to indictment and conviction for such a use of property.

The Court is authorized by the statute to punish by fine only; and may cause the nuisance to be abated. It is not required to do so, when the interests of strangers to the proceedings might be improperly affected.

Exceptions overruled and case remanded.