54 Vt. 403 | Vt. | 1882
The opinion of the court was delivered by
The defendant was tried upon an information filed in the County Court, charging him with having obstructed and filled up an ancient water-course, by means of which the water that had been accustomed to run in said water-course ran back into and along a public highway in the town of Sharon, and gullied, damaged, and impaired said highway, so that the citizens of this State, upon and through said highway, with their teams and carriages, could not go, return, pass, and repass, as they ought and were wont to do; and concludes against the peace and
If the fact was as that evidence tended to show, there can be no question but what it came within sec. 70 of chap. 25 of the Gen. Sts., which provides that, if any person shall wantonly or illegally injure any highway, by filling up or placing obstructions in any ditch made for draining any water from the highway, he shall, as a penalty, forfeit and pay to the treasurer of the town, to be expended in repairing highways, a sum not exceeding $30, to be recovered in an action in the name of the town, with costs.
And, by sec. 71, the person so offending is made liable to the town or any individual for the damages sustained in consequence of such act.
The question then arises, whether, when a statute has prescribed the penalty for the commission of a common-law crime, and provided the method for the enforcement of the penalty, and the penalty is one that the County Court cannot appropriate to the purposes designated by the statute, that court has concurrent jurisdiction with the court designated by the statute, to enforce the penalty namejl in the statute.
In State v. Smith, 7 Conn. 428, it was hold that, on an information charging the defendant with having erected a stone wall in and upon a highway, whereby such highway was narrowed and obstructed, charged an offence at common law, for which the punishment is prescribed by the general statute regarding nuisances, and, therefore, the superior court had not jurisdiction. Bissel, J., in the opinion, says, that the superior court has jurisdiction of all offences at common law for which the punishment is not prescribed by any statute law of the State ; that the punishment for that offence was prescribed by a statute law of the State, which directed the mode of prosecution, and inflicted a penalty on the offender; that, when any punishment is fixed by statute for a common-law offence, none other than the statute punishment can
In State v. Hyde, 11 Conn. 541, it was decided that the offence of erecting a building upon a highway could not be prosecuted before the County Court as an offence at common law, it being punishable by the statute relating to nuisances, by a fine ; and the court say that an examination of the record shows that the offence charged is the precise offence described in the statute in relation to nuisances, which, by the act, is punished by the infliction of a fine of $400. The inquiry, then, is, whether an offence, punishable by a fine of $400, and so within the jurisdiction of a justice, can be prosecuted before the County Court, and be punished by imprisonment and a fine. The legislature, that can prescribe the punishment for offences, has fixed the penalty for this offence ; but if this information can be sustained, it may be increased by judicial legislation to $800 and imprisonment for one year. A proposition involving such a consequence is so entirely subversive of justice that it does not require the aid of argument or authority to refute it.
The above causes were heard on motions in arrest of judgment. The fine which may be paid upon a conviction upon an information, goes into the State treasury. The penalty which may be recovered under the statute goes into the town treasury, to be expended in the repairing of highways. It is difficult to see how a conviction upon an information can be made available as a defence in a proceeding under the statute. And unless it can be made available, a person may be twice punished for the same offence.
The use of the words in the statute, “ shall, as a penalty, forfeit and pay,” is significant of the intention of the legislature to make the penalty therein prescribed the only penalty for the commission of the offence ; and the law does not allow any one .to be twice punished for the same offence.
The case of State v. Wilkinson, 2 Vt. 480, which was an in
Here we think the presumption is, that the-legislature intended that there should be but one remedy, — and the one prescribed by the statute. And, inasmuch as it is not suggested that that remedy was impracticable, it would bo oppressive, wrong, and unrea
As before remarked, there can be no doubt but what, if the facts should be found as the defendants’ evidence tended to .show, the offence with which he was charged came within the statute. It was the right of the defendant to have that evidence submitted to the jury, for them to find how the fact was ; and if found as his evidence tended to show, the court should have refused to take any further jurisdiction of the cause. And in not so submitting it there was error.
The court charged the jury, substantially, that if they should find that if the defendant obstructed an ancient water-course and turned the water into the highway, and it ran in the highway and gullied it or washed it, they would be justified in returning a verdict of guilty.
There are certain acts which are denominated as nuisances per se ; — such as the erection of buildings upon, or enclosing a portion of, the highway, so as to wholly exclude the public from all enjoyment of the same, State v. Wilkinson, supra, and State v. Woodward, 23 Vt. 92, belong to that class. And in that class of cases it is not necessary to show that the public have suffered any injury or inconvenience other than in being excluded from the use of the highway encroached upon. And the court, in the instruction to the jury, above stated, must have considered this case as one within that class. In this we think there was error.
The jury, under the charge, would have been justified in finding the defendant guilty, if they had found the highway was gullied or washed to any extent, — even though such gullying or washing did not injuriously affect the highway for public use.
In State v. Woodward, supra, it is said if the act complained of does not divert the property or any part of it from the use of the public, or in any manner impair the public use and enjoyment of it; but the act was done for the purpose of making the use more beneficial to the public, there would seem to be a manifest propriety in submitting the same to the jury ; and that whether in
In Rex v. Tindall, 1 N. & P. 719, 6 A. & E. 143, the defendant was the owner of the soil adjoining a harbor, and was indicted for a nuisance in erecting planks in it. The verdict found, that by the defendant’s work, the harbor, in some extreme cases, was rendered less secure ; and it was held that consequences so slight, resulting from the acts of the defendant, did not amount to a nuisance.
In Rex v. Russell, 8 E. L. & B. L. 942, 18 Jur. 1022, which was an indictment for obstructing the navigation of the Menai Straits by erecting a wall, the judge asked the jury if they thought the erection a national nuisance, in which case they were to find a verdict of guilty ; but told them that if they thought the nuisance was so slight, rare, and uncertain that the defendant ought not to be made criminally liable for it, they were to acquit him. Held, that the charge was to be understood as meaning, not that a party may legally commit a small nuisance; but that an obstruction might be so insignificant as not to constitute a nuisance ; and that the jury must be understood as finding that the obstruction was so insignificant; and that there was no misdirection warranting a new trial.
In Graves v. Shattuck, 35 N. H., 257, it was decided that the jury must determine from the circumstances of each particular case whether an object permanently placed, temporarily left, or slowly moving in a highway is a nuisance ; and this determination must depend on their finding whether the object, under all the circumstances, necessarily obstructs passage over it.
It might be inferred, from what is said in State v. Woodward, that the intent with which the act complained of was done is the test; but the intention is, in general, immaterial, as characterizing the act; it is the effect that determines whether the act constitutes a nuisance or not.
A common nuisance is defined by Blackstone, (4th vol. Com. 167), to be, the doing of a thing to the annoyance of all the king’s subjects ; and, under that definition, the doing of the thing
It is difficult, and perhaps impossible, to establish any general rule upon the subject; but it must be shown, to constitute an act like the one complained of — a public nuisance, that the travelling public were, to some extent, impeded, hindered, or obstructed, in the use of the highway for the purpose of travelling over it.
It appears that there was no evidence that the travel along the highway was, in any way, interrupted, in consequence of the water running along it. If there was no evidence showing that the travel had been impeded, hindered, or obstructed, in consequence of the water running along said highway, a verdict of acquittal should have been directed. But it cannot be assumed that there was no such evidence, and if there was evidence tending to show it, the court should have submitted the question to the jury, for them to find whether the travel was impeded, hindered, or obstructed, by reason of the water running along said highway; and if so, to what extent.
We do not find any error in the refusal to charge as requested, or in the charge, except in the matters herein before stated.
Exceptions sustained, judgment and verdict set aside, and cause remanded.