Presentment by commissioners of sewers, part of a tain the said port, when and as often as it is necessary for the use and benefit of all persons importing or exporting goods there, and for the benefit and advantage of trade and navigation there. (e) Essex-Middlesex and Kent to wit. Be it remembered, that by and at a special session and court of sewers, duly held for the limits of the levels of Havering, Dagenham, Ripple, Barking, Eastham, Westham, Layton, Walthamfor not re- stow, Bromley, and East Marsh, and for the respective borpairing ders or confines thereof, near to the same as the same rewall which spectively is, and standing, lying, running and being withwas blown in the said respective counties, and within the bounds, limits, up by the and jurisdictions of his majesty's commissioners of sewers, spring duly issued under the great seal of G. B. on the nineteenth which de- day of June in the year of our lord 1761, still in force unfendant by suspended, at the sign of the Green Man in Great I. in the reason of said county of E. on Saturday the fifth day of January in his tenure the year of our lord 1765, before B. G. esq. chairman, S. to repair. W., J. H., J. L., C. S., T. F., J. G., W. S., G. S., E. R., M., tides, and was bound (S) P., A. and W. R., esquires, commissioners in the said commission named, three thereof, to wit, the said B. G., S. W., and J. K., are therein and thereby nominated and appointed of the quorum, come twelve sewers, jury for our sovereign lord the king, being duly returned and charged, &c. come upon a sewers' jury for the limits, and for the borders and confines of R. and B. levels in the said county of E. to wit, Mr. K., J. A., J. B., G. C., F. L., J. L., B. R. S., R. H., H. F., T. T., H. M., and J. P., who having, according to the tenor of the commission aforesaid, diligently enquired, as such jury, into the several matters and things belonging to the sewers within the limits of the charges of the said jurors, according to the tenor, true intent, and meaning of the said commission, the said jurors do upon their oath present in writing to the court here, as follows, that is to say, The pre- W. little level, within B. great lever, Essex. The jurors sentment. aforesaid, upon their oath aforesaid present, that T. S. of, &c. and all those estates he hath of and in certain lands, called, &c. in the parish of B. in this county (of which said said lands the said T. S. now is, and for divers years last [*607] past hath been the owner, from time whereof the memory of man is not to the contrary, have been forced to the repair of and of right ought to have repaired one and a half rods in length, of a certain wall adjoining to and on the side of a certain creek called B. creek, in the parish of B. afore (e) Quære, if the obligation to repair ought not to be stated more fully, as in last precedents, and see ante 583, 587. (f) See form in 4 Wentw. 190. said, and within the limits, bounds, and confines of W. level, and within the jurisdiction of this court, by reason of his and their tenure of the said lands, and that the said T. S. still of right ought to repair the same. And the jurors aforesaid, upon their oath aforesaid, do further present, that although the said wall hath been divers times in due manner presented to be out of repair, the said T. S. hath neglected and refused to repair the same, and that by and through the neglect and default of the said T. S. in that behalf, and for want of the said wall being kept in due and sufficient repair, a great deal of the said wall which so ought to be repaired by the said T. S. as aforesaid, to wit, thirty eight feet or thereabouts in length of the said wall, was blown up and washed away by a spring tide which happened on, &c. now last past. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said T. S. by reason of his tenure of his said lands in B. aforesaid, ought, at his own costs and charges, to repair, amend, and make good the said breach in the aforesaid wall. INDICTMENTS, &c. FOR NUISANCES TO HIGH- shut a gate across a [Describe the highway as ante 593, 4, to the words "at For erecttheir free will and pleasure," after which are sometimes added, ing and "without any obstruction, hindrance or impediments," and keeping then the indictment proceeds as follows.] Yet one J. E. late of, &c. T. R. late of, &c. [and other defendants] on, &c. with general force and arms at the parish of T. aforesaid, in the county highway. aforesaid, unlawfully and injuriously made, erected and (5) placed, and caused to be made, erected and placed, a certain gate and gate posts in, upon, and across the said king's highway, in the parish of T. aforesaid, in the county aforesaid, between the said vills of T. and T. and unlawfully,* and in- [*608] (3) See other precedents 4 Wentw. 181. 191. 198. 6 Wentw. 401, 5. Cro. C. C. 303 to 305. Cro. C. A. 373. 379. Plead. Ass. 424. 6 East, 427. Starkie, 664 to 666, and see general notes, ante 565 to 576, and precedents describing different ways and notes thereto, ante 576 to 589. The offence of obstructing highways. It is laid down by lord Ellenborough that every unauthorized obstruction of a highway, to the annoyance of the king's subjects, is an indictable offence, 3 Camp. 227. juriously locked, fastened and chained the said gate posts so as aforesaid made, erected, and placed, and locked, fastened and chained, from the said, &c. until the day of taking this inquisition, with force and arms, at, &c. aforesaid, unlaw may be indicted, 3 Campb. 224. So a timber merchant occasionally cutting logs of wood in the street, which he could not otherwise convey into his premises, will not be excused by the necessity which, in chosing the situation, he himself created, 3 Campb. 230. It is even said that, "if coaches on the occasion of a rout wait an unreasonable length of time in a public street and obstruct the transit of his majesty's subjects who wish to pass through it in carriges or on foot, the persons who cause and permit such coaches so to wait are guilty of a nuisance," 3 Campb. 226. Nor is it necessary in order to fix the responsibility on the defendant to show that he immediately obstructed the public way, or even intended to do so; it seems to be sufficient, if the inconvenience result, as an immediate consequence of any public exhibition or act; for the erection of a booth to display rope dancing, and other attractive spectacles, near a public street in London, which draws together a large concourse of people, is a nuisance liable to be punished and abated, 1 Ventr. 169. 1 Mod. 76, 2 Keb. 846. Bac. Ab. Nuisance. But distributing handbills in a public way has been holden not to be illegal, 1 Burr. 516, and it may be collected that a mere transitory obstruction, which must necessarily occur, is excusable if all reasonable promptness be exerted. So that the erection of a scaffolding to repair a house, the unloading a cart or waggon, and the delivery of any large articles, as casks of liquor, if done with as little delay as possible are lawful, though if an unreasonable time were employed in the operation they would become nuisances, 3 Campb. 231. It seems to have been holden by lord Kenyon, that the existence of a nuisance for a great number of years might render it legal, Peake N. P. 91. but the contrary now appears to be settled, 7 East 199. 3 Campb. 227. ante 1 vol. 160, 1. Independently of any legal preceedings, it appears that any person may lawfully abate a public nuisance, at least if it be placed in the middle of a highway, and obstruct the passage of his majesty's subjects, Hawk. b. 1. c. 75. s. 12. The modes of prosecution. Indictment, &c. appear to be the same which we have seen may be pursued for not repairing see notes ante 565 to 576. Since whatever proceedings may be adopted for a mere nonfeasance are, at least, equally applicable to an actual obstruction. The requisites also of the indictment presentment or information are in general similar. The same rules and principles almost invariably apply. Thus it is not necessary to state the antiquity of the road, or to set forth its boundaries. If the nuisance continue, the indictment should charge the facts accordingly, see 8 Term Rep. 142. Every proceeding, whether for nuisances arising from neglect of the duty, or encroachments on the public conveniences, must contain the words "to the common nuisance of all the liege subjects of our lord the now king,' residing, passing, or using, &c, according to the facts, in its conclusion, 2 Stra. 688. Com. Dig. Indictment, G. 6. and it is said that if the indictment conclude, to the damage of divers subjects, it will be insufficient. Cro. Eliz. 148. A presentment by a judge or justice for an obstruction, &c. must conclude, against the form of the statute, &c. 13 East. 258, ante 9 and 10. Judgment. Persons guilty of a common nuisance may be fined and imprisoned at the discretion of the court in which they are convicted. Hawk. b. 1. c. 75. s. 14. But no confinement or corporal punishment is now inflicted. The object of the prosecution is, as in the case of highways, to remove the nuisance; and, to that end alone, the sentence is in general, directed. and fasten fully and injuriously continued, and still doth continue, whereby the liege subjects of our said lord the king, for all the time aforesaid, were not able, nor yet are able to go, return, pass and repass along and through the said common king's highway, with their cattle, carts and carriages, as they were accustomed and ought to do. To the great damage, hindrance and common nuisance of all the liege subjects of our said lord the king, going, returning, passing, and repassing in, along and through the said common king's highway, to the evil example of all others in the like case offending, and against the peace of our said lord the king, his crown and dignity. And the jurors, &c. do further present, Second that, &c. [describe the highway as in first count.] Yet the count, for said J. E., T. R., &c. on the said, &c. with force and arms at, locking &c. aforesaid, unlawfully and injuriously locked, fastened ing a gate and chained and caused to be locked, fastened and chained, erected in a certain other gate before that time made, to certain other a common gate posts before that time made, erected and placed in, upon road. public and across the said last mentioned king's highway, in, &c. aforesaid, between the vills of T. and I., and the said last mentioned gate so locked, fastened and chained to the said last mentioned gate posts, from the said, &c. until the day of taking this inquisition, with force and arms at, &c. aforesaid, unlawfully and injuriously continued, and still doth continue, whereby the liege subjects of our said lord the king for all the time last aforesaid, were not able, nor yet are able to go, return, pass and repass along and through the said last mentioned common king's highway, with their cattle, carts and carriages, as they were accustomed and ought to do, to the great damage, hindrance and common nuisance, &c. [as in the first count to the end.] [*609] in another That* A. P. late of, &c. on, &c. with force and arms at, [*610] &c. in a certain king's highway there leading from, &c. to, The like &c. at a certain place there near to the south corner of a place the called, &c. unlawfully and injuriously did erect and cause to erecting be erected a certain wooden gate of the length of fifteen feet, and keepand of the height of four feet upon and across the said king's ing shut a It is, therefore, usual, when the nuisance is stated on the proceedings as continuing, in addition to a fine, to order the defendant at his own costs to abate the nuisance. 2 Stra. 686. But it should seem that where a building is not a nuisance in itself, but becomes so, either by its extension or the use made of it for carrying on a noxious trade, the house itself ought not to be demolished, but only such part removed as an noys the public, or such injurious oc- (h) See a precedent, 6 Went. gate across an highway. (h) For ob defend down a hedge wall, &c. across way. (i) highway aforesaid, and that the said A. P. the said wooden gate so as aforesaid erected and made from the said, &c. until the day of the taking this inquisition, with force and arms at, &c. aforesaid, unlawfully and injuriously did continue locked and fastened with an iron chain, and yet doth continue, by which the aforesaid king's common highway during all the time aforesaid was so obstructed and stopped up that the king's liege subjects in, by and through the same highway could not nor yet can go, return and pass with their horses, coaches, carts and carriages so freely as they ought and were wont to do, to the great damage and common nuisance, &c. [conclusion as ante 608.] That from time whereof the memory of man runneth not to the contrary there was and yet is a certain ancient and common public foot-way leading from the town of A. in the structing a parish of B. in the county aforesaid, through and along a footway in certain close of land called the Ten Acres, lying and being ant's close, at the parish aforesaid, in the county aforesaid, towards and by pulling unto the town of W. in the same county, used for all the stile and liege subjects of our said lord the king and his predecessors erecting a to go, return, pass and repass on foot, in, through, along and over, every year, at all times of the year, at their free will and pleasure without any obstruction, hindrance or impediment whatsoever, and which said close of land on, &c. was, and continually from thence until the day of the taking of this inquisition hath been and still is in the possession and occupation of one J. M. late of, &c. aforesaid. And the jurors, &c. do further present, that the said J. M.* on the said, &c. with force and arms. &c. unlawfully, wilfully and [*611] injuriously did obstruct, stop up and inclose and cause and procure to be obstructed, stopped up and inclosed, the said footway, by then and there taking down, breaking down, and prostrating and causing and procuring to be taken down, broken down and prostrated, a certain ancient wooden stile then erected, standing and being in and upon the same footway in the said close of land, and by then and there making, setting and placing, and causing and procuring to be made, set up and placed a certain large hedge in, upon and across the said footway, in the place, room and stead of the said stile, and also by then and there erecting, setting up and placing a certain erection, wall or building made of brick, mortar and other materials, in, upon and across a certain other part of the said footway in the said close there, and the said footway so as aforesaid obstructed, stopped up and inclosed with the said hedge and building, he the said J. M. (i) See form Cro. C. A. 373, and precedent and note, ante 607. |