66 P. 243 | Kan. | 1901
The opinion of the court was delivered by
The granting of a continuance was largely a matter within the discretion of the court. The offense charged was a misdemeanor. We do not think any of the rights of the defendant were prejudicially affected by the absence of attorneys who had prepared for the trial. He was represented by counsel of high standing and ability, and we find nothing in the record to indicate that any point favorable to him was overlooked.
There was some confusion in the answers made by the juror Hale Ritchie touching his opinion of the guilt or innocence of the defendant, but his whole examination, taken together, does not show him to have been disqualified.
The existence of such common or public nuisance as appellant offered to show was kept by the prosecuting witness, in violation of law, injuriously affected all other persons in the city of Topeka equally with himself. It is not claimed that he was specially injured, or peculiarly or individually hurt, in any other manner or degree than in common with all others in the community. He could not have maintained an action in his o wn name to abate the nuisance. (Jones v. Chanute, ante, p. 243, 65 Pac. 243.)
In the case of Brown v. Perkins and wife, 12 Gray, 89, the supreme court of Massachusetts had before it a similar question. In an action of tort for breaking and entering the plaintiff’s shop and carrying away and destroying a barrel of vinegar and other goods, the answer of the defendant alleged that the building was kept for the sale of intoxicating liquors and was a public nuisance ; that a large number of persons assembled to abate the same, and destroyed or injured no article of merchandise, but only spirituous liquor, unlawfully kept for sale, and did no other act, and used no more force, than was necessary to abate such nuisance. By statute in force in Massachusetts at that
“It is not lawful by the common law for any and all persons to abate a common nuisance, merely because it is a common nuisance, though the doctrine may have been sometimes stated-in terms so general as to give countenance to this supposition. This right and power is never entrusted to individuals in general, without process of law, by way of vindicating the public right, but solely for the relief of a party whose right is obstructed by such nuisance.” ( Page 101.)
“The true theory of abatement of nuisance is that an individual citizen may abate a private nuisance injurious to him, when he could also bring an action; and also, when a common nuisance obstructs his individual right, he may remove it to enable him to enjoy that right, and he cannot be called in question for so doing. As in the case of the obstruction across a highway,- and an unauthorized bridge across a navigable watercourse, if he has occasion to use it, he may remove it by way of abatement. But this would not justify strangers, being inhabitants of other parts*536 of the commonwealth, having no such occasion to use it, to do the same. Some of the earlier cases, perhaps, in laying down the general proposition that private subjects may abate a common nuisance, did not expressly mark this distinction; but we think, upon the authority of modern cases, where the distinctions are more accurately, made, and upon principle, this is the true rule of law.” (Pages 101, 102.)
“The keeping of a building for the sale of intoxicating liquors, if a nuisance at all, is exclusively a common nuisance ; and the fact that the husbands, wives, children or servants of any person do frequent such a place and get intoxicating liquor there does not make it a special nuisance or injury to their private rights, so as to authorize and justify such persons in breaking into the shop or building where it is thus sold, and destroying the liquor there found, and the vessels in which it may be kept; but it can only be prosecuted as a public or common nuisance in the mode prescribed by law.” (Page 102.)
This enunciation of the law finds approval in all the text-books upon the subject, so far as we have examined them. (Wood, Nuis. [3d ed.] 966-968; Webb, Poll. Torts, 515, and note; see, also, Corthell v. Holmes, 87 Me. 24, 32 Atl. 715.) In Webb’s Pollock on Torts, page 517, it is stated that in England the application of the remedy of abatement, by the forcible act of an individual, is now in use only as to rights of common, rights of way, and, sometimes, rights of water, “and even in those cases it ought never to be used without good advisement.”
A fence across a public road is a common nuisance which a person journeying along the highway may legally abate by removing the obstruction. This is so because his progress is impeded and particular injury is sustained by him not shared in by the community generally. This right of abatement, however, cannot be lawfully exercised by one living at a distance from
The appellant and his associates proceeded on the erroneous belief that because the prosecuting witness was a violator of the law they might right the wrongs the public was suffering by his. acts, and this in a summary manner, by resort to physical force, guided only by the counsels of a mob. It was a congregation of lawbreakers on one side retaliating upon an individual lawbreaker on the other, for lawless acts of the latter which affected not them alone but hundreds of others (the public), whom they assumed to represent. Courts of justice cannot approve or countenance such disregard of the law. To do so would create and encourage disrespect for all governmental restraint, which is the beginning of anarchy.
The judgment of the district court will be affirmed.