14 Wend. 250 | N.Y. Sup. Ct. | 1835
By the Court,
The only question in the case is, whether the common law remedy for an encroachment upon a public highway has been taken away by the statute, 1 R. S. 521. That act provides, that in case of an encroachment by fences erected by any occupant of land through which a highway runs, the commissioners of highways shall, if deemed necessary, order such fences to be removed. Notice in writing is required to be given to the occupant to remove them within sixty days, and if not done within that time, a forfeiture of fifty cents for each day thereafter accrues. The occupant may, if he pleases, deny the encroachment, and then a jury is summoned to try the issue. The 109th section, however, provides that no person shall be required to remove a fence under the preceding provisions of this article,
It is very clear, if the summary remedy at common low is taken away by these provisions, a serious interruption of the use of a public highway may exist for seven months in the year between the times above specified ; and for the remaining five months no remedy at all is to be found. If the abatement of the nuisance is abolished, so is the remedy by indictment; for the argument drawn from the statute is as conclusive in the one case as the other. Where a statute creates a new offence, by making unlawful what was before lawful, and prescribes a particular penalty and mode of enforcing it, the statute of course must be followed ; but if the offence was before punishable at common law, though the statute may prescribe a new remedy, unless there are negative words excluding all others, the common law remedy still remains. 2 Burr. 803, 805, 838. 2 Hawk. 301, 2. 7 Wend. 280. 5 Cowen, 168. 2 Caines, 169. That affirmative statutes do not take away the common law, is a maxim of the law itself. 2 Inst. 200. 6 Bac. tit. Statute, G. Upon these principles, I am satisfied the remedy given by statute is cumulative. There is nothing to be found in it, expressly or impliedly, excluding already existing remedies which were well known to the legislature.
The summary abatement of a nuisance by an individual or individuals is always under the peril of haying the actors deemed trespassers, unless the existence of a nuisance is established. In the particular case provided for, this might often be a nice and difficult question, and the public convenience might seriously suffer before any one would consent to assume the responsibility. A speedy mode of ascertaining the fact by legal proceedings was therefore wise and useful to all parties, as it provided the means by which the question could be determined without the hazard incident to an abatement. But cases of palpable encroachment upon the highway, to the serious interruption of the use of the common right, might arise, of such urgent necessity as not to admit of delay, and hence the existing remedies were not abrogated. Either may be resorted to. No distinction was intended to be made by the stat
The 38th section of 13 Geo. 3, ch. 78, vests in the surveyors of highways substantially the power conferred on the commissioners here, in respect to encroachments, 1 Hawk. 395; 2 Burns’ J. title Highways, 506; and yet they are pronounced public nuisances at common law, and abateable as such by any one. 2 Burns’ J. 503. 2 Hawk. 408, § 61, 2. And the latter author states that the provisions in 13 Geo. 3 were passed, because it was thought the common law had not sufficiently provided against the mischief. The 102d section, 1 R. S. 521, imposes a penalty of $5 for every obstruction of a highway. Now the argument is just as forcible that this provision has abrogated the common law, as that urged upon us in respect to encroachments. By the common law, both were offences and abateable, and no negative words are used in either provision of the statute.
That any citizen has a right to abate a nuisance of this kind was a question considerably discussed in the case of Hart v. Mayor of Albany, 9 Wendell, 589, 607, 8, and no doubt was entertained upon it. The authorities referred to by Mr. Justice Sutherland and Senator Edmonds appear to be uniform.
I am therefore of opinion that the court below erred, and that their judgment ought to be reversed, and that a venire de novo issue.
Judgment accordingly.