Commonwealth v. King

Dewey, J.

This indictment is so framed that it may be sustained, if the facts charged would authorize a conviction either under the statutes of the Commonwealth, or by force of the common law.

1. Do the facts stated in the indictment bring the case within the provisions of the Rev. Sts. c. 24, § 61 ? that being the only statute that is supposed to be applicable to the case. The cases embraced within this statute enactment are cases of nuisances, by reason of fences or buildings placed within the limits of the road or highway. Whether the evidence, that was offered in the present case, would have supported a count charging the offence as that of erecting a fence withir the limits of a highway, it is unnecessary to consider ; as nc such offence is set forth in the present indictment. Smh *118 being the state of the case, if the evidence would have sup* ported a charge of a nuisance in erecting a fence upon a highway, nevertheless the indictment could not be sustained for the statute offence.

2. The next inquiry is, whether the facts alleged constitute an offence at common law. Upon this point we have no doubt. By the location of a public highway, with certain defined exterior limits, the public acquire an easement coextensive with the limits of such highway. Whoever obstructs the full enjoyment of that easement, by making deposits, within such limits of the located highway, of timber, stones or other things, to remain there and occupy a portion of such public highway, is guilty of a nuisance at common law.

It was contended by the counsel for the defendant, that the rights of the public are confined exclusively to the made or travelled road, or to that part which might be safely and properly used for travelling; and that a deposit of timber, stones or other articles, upon a part of the located highway, which, from its want of adaptation to use for travel, could not be thus enjoyed, — as a portion of the way on which there was a high bank, or a deep ravine, — would not subject the party to an indictment for a nuisance upon the highway. This principle is supposed to be sanctioned by the decisions of this court in reference to the rights of travellers, holding that such travellers are to use- the travelled or made road, and that if such road is of suitable width, and kept in proper repair, the town may have fully discharged its duty, although it has not made and kept in repair a road of the entire width of the located highway. But there is a manifest distinction between the two cases. In the case supposed, the traveller has all the benefits of a public way secured to him. He only requires a road of proper width, and kept in good repair. But the town, on the other hand, to enable itself to discharge its obligation to the public, requires the full and entire use of the whole located highway. The space between the made road and the exterior limits of the located highway may be required for various purposes; as for making and keeping in *119 repair the travelled path; for making sluices and watercourses; for furnishing earth to raise the road. And, not unfrequently, from the location of the road and from its exposure to be obstructed by snow, the entire width of the located road is required to be kept open, to guard against accumulations of snow that might otherwise wholly obstruct the public travel at such seasons. For these and other uses, in aid of what is the leading object, the keeping in good repair of the made or travelled road, the general easement in the public, acquired by the location of a highway, is coextensive with the exterior limits of the located highway; and the question of nuisance or no nuisance does not depend upon the fact, whether that part of the highway, which is alleged to have been unlawfully entered upon and obstructed by the defendant, was a portion of the highway capable of being used by the traveller. Whether it be so or not, an entry upon the located highway, and occupation of any portion of it by deposits of lumber, stones, &c. would be a nuisance, and subject the party to an indictment therefor.

We do not perceive any new principle to be settled in the decision of this case. It is only the frequently occurring case of an indictment for a nuisance upon a highway. Such indictment, charging acts of similar character to the present, have always been sustained as good at common law. And when an offence, punishable at common law only, is alleged to be contrary to a statute, this allegation may be rejected as surplusage. 1 Chit. Crim. Law, 289 . 16 Mass. 385 .

It was suggested in the argument, that as the legislature has undertaken ■ to legislate upon the subject of nuisances upon the highways, the inference must be, that, by the enactment of the Rev. Sts. c. 24, § 61, it was virtually declared, either that no such offence existed at common law, or if such was not the effect, still, having enacted a statute applicable to the subject, the offence was no longer punishable at common law. The first position we think unsound; and as to the other, we consider the provisions of the statute to be merely cumulative, leaving the common law in full force as to casea like the present.

*120 The court are of opinion that this offence is properly punishable as an offence at common law, and that the ruling of ’be court of common pleas, upon the trial, was correct.

Exceptions overruled.