Citation Numbers: 3 Hill & Den. 479
Judges: Bronson
Filed Date: 10/15/1842
Status: Precedential
Modified Date: 1/12/2023
Although one object of the prosecution may be the abatement of the nuisance, there may also be a judgment of fine and imprisonment against the defendants. They must therefore be tried on the same principles which would govern if they were charged with any other misdemeanor. The case does not state the ages of the infant defendants, but if, as was suggested on the argument, some of them are only a year or two old, they are not doli capax, and could not rightfully be convicted of any offence. Nor do I see on what principle the femes covert were included in the indictment. During coverture the husband has the control of the wife’s estate, and if he erect a nuisance on her land, she cannot be made to answer criminally for that offence.
But it is not necessary to discriminate among the defendants ; for, as the case stands, none of them were answerable for this nuisance. It appears that two of the defendants, with Burnett, were in the use and occupation of the red mill; but the necessity of showing that the red mill had some connection with the dam in question was strangely overlooked on the trial. These two defendants must then be regarded as standing on the same footing with the others, and there is no evidence that either of the defendants has done any act whatever in relation to the erection or continuance of the dam. The district attorney seems to have proceeded on the ground that it was enough to show the defendants owners of the property, without proving that they had either made, maintained or in any way sane
I think there is another difficulty in the case. As the Onondaga creek is not a public highway, the erection of the dam was not in itself an illegal act. It was not enough therefore for the prosecutor to allege in the indictment that the defendants built or maintained the dam, without going further and showing how or in what way this exercise of a private right of property became a nuisance to the public. The indictment does state the way in which the dam became a nuisance, but the court refused to instruct the jury that the charge must be proved as it was laid. The substance of the charge is, that by reason of the dam the animal and vegetable substances brought down the stream were collected and accumulated in large quan
The counsel for the people have likened this case to a prosecution for murder, where the manner of the death, and the means by which it was effected must be stated ; and yet the defendant may be convicted, although it turn out upon the trial that the wound was given with a different weapon from that mentioned in the indictment. (Mackalley’s case, 9 Co. 67 ; 2 Inst. 319 ; The King v. Clark, 1 Brod. & Bing. 473 ; 1 East's P. C. 341 ; 2 Hale's P.C. 185.)
The former trial and judgment did not constitute a conclusive bar to this prosecution. The complaint is not that the dam was in itself illegal, but that a nuisance had resulted from its erection. It may well be that the dam had not proved injurious to the public at the time the first indictment was found in 1832, and yet that the most mischievous consequences have since followed. Although there may have been no change in the height of the dam, still there may be a difference in the mode of using it, as by drawing down the pond in the daytime, and leaving a large amount of filthy matter, which in 1832 was kept constantly covered with water, exposed to the alternate action of wet and heat. And there are other ways in which the pond may now produce malaria which did not exist at a former period. On this point I think the court below was right; but the verdict must be set aside on the ground that the defendants were not shown to be the authors of the nuisance.
New trial granted.
See The People v. Colt, (ante, p. 432.)
See 2 Stark. Ev. 350, 1, Am. ed. 1830.