Fields v. Stokley

Chief Justice Suarswood

delivered the opinion of the Court, January 23d 1882.

It appears by the record before us that it was expressly agreed, after the trial had progressed some time, that all the facts set forth in the special plea, not already proved should be considered as having been proved. The plea, inter alia, avers that the houses mentioned in the declaration and for the removal of wdiich this action was brought were composed wholly of highly inflammable and combustible materials, and were insufficiently provided with chimneys and the usual and ordinary appliances for protection against fire, and were so used constantly, night and day, by drunken and disorderly persons, that the lives, health, and property of citizens were greatly endangered and the public safety imperilled. The question whether they were a public nuisance was fairly submitted to the jury by the learned judge below, and the verdict of the jury in favor of the defendant established that fact. Had the presentment by the grand jury been followed up by an indictment, trial and conviction of the plaintiff below, the judgment thereon would have been that the nuisance should be abated, and would have been a conclusive justification of the action of the defendant. The defendant was the mayor of the city, and charged with the conservation of the peace and the protection of the property of the city. He was the representative of the city. It is true that a wooden building, though erected contrary to law, is not per se a public nuisance. But it may become such by the manner in which it is used or allowed to be used. It is true that a private person not specially aggrieved cannot abate a public nuisance, and especially where a statute provides a remedy for an offence created by it, that must be followed. It is well settled, however, that a private person, if specially aggrieved by a public nuisance, may abate it. In Rung v. Shoneberger, 2 Watts 23, it was held by this court that the erection of a building upon the public square of a town was a public and not a private offence, and may be abated by any one aggrieved. In that case the buildings were removed by officers of the town by virtue of the authority of the town council, and the persons in possession, and who had erected the buildings, had recovered in an action of trespass. The judgment, however, was reversed, Mr. Justice Eogers saying, “ A nuisance, whether public or private, may be abated by the party aggrieved, so that it is ’done peaceably and without a riot. The reason (says Blackstone, 3 Coni. 5) why the law allows this private and summary method of doing justice, is because injuries which obstruct or arrest such things as are of daily convenience and use, require an immediate remedy, and cannot wait for the slow progress of the ord inary forms of justice.” The jury, under the charge of the learned judge, has found these buildings to be of that character. The city of Philadelphia was the owner of large and valuable property in their neighborhood. Any hour of the daty or night they were in danger of being set on fire by those who frequented them with the owner’s permission. It is stated as a fact in the special plea, and of course a fact admitted by the agreement, that the public safety was imperilled. Nothing more was necessary to justify the action of the defendant. If the owner or tenant of a powder magazine should madly or wickedly insist upon smoking a cigar on the premises, can anyone doubt that a policeman or even a neighbor could justify in trespass for forcibly ejecting him and his cigar from his own premises? It is true, that a private person assuming to abate a public nuisance takes upon himself the responsibility of proving to the satisfaction of a jury, the fact of nuisance. The official position of the defendant, as mayor of Philadelphia, did not relieve him from his personal responsibility in this respect. Rut he has been sustained by the verdict of the jury, which is a justification of his alleged' trespass. We are of opinion that this case was properly submitted to the determination of the jury, that there was nothing in the charge calculated to mislead them, and that it would have been manifest error if the learned judge had affirmed the plaintiff’s point, and thereby in effect instructed the jury to find a verdict in his favor.

Judgment affirmed.