Commonwealth v. Wilkinson

33 Mass. 175 | Mass. | 1834

Shaw C. J.

delivered the opinion of the Court. The exception taken at the trial, has not been much pressed in the argument, and we are clearly of opinion, that it could not be sustained. The indictment was for the continuance of a nuisance, by keeping up a building, erected by others, within the limits of a highway. The offer was, to prove that the part of the turnpike covered by the building, was not within the travelled part thereof, but that a high bank had been removed, for the purpose of placing the buildings. We think this was rightly rejected, because it afforded neither justification nor excuse. Had the bank removed been itself a nuisance, which does not appear, and which would be putting it on the strongest ground for the defendant, though he might be warranted in removing it as a nuisance, he would not be justified in putting another in its place.

But the principal question, and one which goes to the foun dation of this proceeding is, whether a turnpike road in this Commonwealth, is a highway, and whether an indictment will lie against any person, for an obstruction thereon as a public nuisance. We think, that a turnpike road is a public highway, established by public authority for public use, and is to be regarded as a public easement, and not as private propel ty.

The only difference between this and a common highway is, that instead of being made at the public expense in the first instance, it is authorized and laid out by public authority, and made at the expense of individuals in the first instance ; and the cost of construction and maintenance, is reimbursed by a toll, levied by public authority for the purpose. Every traveller has the same right to use it, paying the toll established by law, as he would have to use any other public highway.

Motions for new trial and in arrest of judgment overruled.