| Me. | Jun 30, 1903
This is an indictment against the Webb’s Elver Improvement Company, a corporation doing business in Lewiston, in the County of Androscoggin and State of Maine, for nuisance in which it is alleged that the respondent corporation maintained certain dams at the outlet of Webb’s Pond, in Franklin County, in said State, by which the water of the pond was raised so as to overflow, obstruct and encumber the highway around the head of the pond rendering it impassable.
By E. S., chap. 17, § 5, “The obstructing or encumbering by fences, buildings, or otherwise, highways, private ways, streets, alleys, commons, common landing places, or burying grounds, are nuisances within the limitations and exceptions hereafter mentioned.”
The respondent demurred to the indictment as insufficient in law. The demurrer was overruled by the presiding justice, and the cause is brought before the law court on exceptions.
It appears that the Webb’s Eiver Improvement Company was incorporated by an Act of the Legislature, chap. 84, Private and Special Laws of 1891, referred to and made part of the bill of exceptions. Its charter gave the corporation the right to maintain dams and other structures at the outlet of this pond, and it is claimed by the respondent that the indictment alleges nothing which it has done not authorized by the act of incorporation.
The charge constitutes an indictable offense to which corporations, as well as individuals, are amenable, and unless privileged by the special act of incorporation, the respondent would be chargeable with the offense defined in. the section and chapter of the E. S. quoted. The test of its rights and privileges is the statute conferring them,
It is an elementary rule of pleading that every material fact essential to the commission of a criminal offense must be distinctly alleged in the indictment. Williams v. The People, 101 Ill. 385; State v. Paul, 69 Maine, 215; State v. Chapman, 68 Maine, 477; State v. Bushey, 84 Maine, 459.
Ordinarily it is not necessary to make negative averments unless the clause defining the crime contains exceptions. Bishop New Criminal Procedure, par. 631.
While the statute quoted has in its terms no exception or limitation exempting the respondent from its effect, the law creating the corporation gave it authority to do what the indictment alleges it has done. The Act of the Legislature was. a public act, and the courts are bound to notice its provisions as part of the law of the land. B. S., chap. 1, § 6, par. XXYI.
So that as to the respondent, the act of incorporation modified the statute which declares such obstructions nuisances as fully as if it had been incorporated therein. The corporation if it has erected and maintained the dam in accordance with its charter is protected against indictment for nuisance even though individuals or the public have been injured. Crittenden v. Wilson, 5 Cowen, 165, 15 Am. Dec. 462; Commonwealth v. Chapin, 5 Pick. 199, 16 Am. Dec. 386.
If the acts of the respondent described in the indictment are only such as it might legally do, no law has been violated and no offense is charged in the indictment. State v. Godfrey, 24 Maine, 232, 41 Am. Dec. 382; State v. Turnbull, 78 Maine, 392.
The indictment is therefore insufficient in not alleging that the respondent corporation exceeded its charter rights and privileges. This case is substantially identical with State v. Godfrey, supra.
JExeeptions su/stained, Demurrer sustained,