The opinion of the Court was delivered by
After much consideration it was settled in Taggart’s Case, 9 Harris 527, that, on conviction for a continuing nuisance, the defendаnt, besides being sentenced to fine and imprisonment, should bе ordered also to abate the nuisance; and that if he failed to do so, a writ, founded on such a judgment, might issue tо the sheriff, requiring Mm to abate the nuisance, at the costs of the defendant.
The Court in this case entered no judgment against the defendant that the nuisance should be abated, but ordered the sheriff to abate it by removing the barn.
This was erroneous, not only because the defendant should havе been sentenced, as in Taggart’s Case, but becausе of the order for the removal of the barn. The defendant was acquitted on the first count, which charged the barn with being a nuisance, and was convicted only on the second count, wherein the erection of the barn is allеged by way of inducement to the offence, which is desсribed as putting hay, straw, and other products of the farm in said barn, and keeping horses, mules, cattle, and other animals in and about said barn, and in the yard adjacent therеto, and feeding the said cattle, horses, and other аnimals with the aforesaid hay and straw and other produсts in said barn, and in the said yard near to the aforesaid springs, &c. The offence laid in this count consisted in the use made of the barn and yard in close proximity to the sрrings, and the nuisance would be effectually abated by disсontinuing such use. Where an erection or structure itself сonstitutes the nuisance, as where it is put up in a public strеet, its demolition or removal is necessary to the abatement of the nuisance; but where the offence consists in a wrongful use of a building, harmless in itself, the remedy is to stop such use, not to tear down or remove the building itself. The barn may be used for storing hay and grain without annoyance to the public, but for stabling and feeding cattle it cannоt be. The public are entitled to pure waters from thе springs in question, and must be protected in the enjoyment оf this right. The Court should take effectual measures to prevent the barn and yard from being used in the manner complained of, and to compel the defendant to put
Whеn, in the progress of agricultural science, the barnyаrd shall come to be regarded as among the most vаluable of the farmer’s possessions, as containing the fertilizing agents he needs on his fields, he will not wait for the criminal law to compel him to stop its leakings into the springs and watercourses below, but, with no other promptings than self-interest, will husband carefully this great source of wealth.
The sentence is reversed, and the record remanded to the Quarter Sessions, with directions to proceed and sentence the defendant according to law.