§ 272. Market Cart Obstructing Street - Usual Passing of Vehicles, etc., not Interfered with.-In State v. Edens,1 the court say: "Strip the case then, of all that is said about the city regulation, and the causes which led to it, and what does the conduct of the defendant, as found by the jury, amount to? Nothing more than on a day certain he stood, with his cart and mule, near the angle made by two streets, one of which was ninety-nine, and the other sixty-nine feet wide, for the space of one hour and a half, during all of which time 'there was the usual passing of vehicles and foot-passengers every way up and down the streets.' We can not think that conduct such as this is deemed by the law to amount to a nuisance per se. "Any permanent obstructions to a public highway, such as would be caused by the erection of a fence or building thereon, is of itself a nuisance, though it should not operate as an actual obstacle to travel, or work a positive inconvenience to any one. It is an encroachment upon a public right, and as such is not permitted by the law to be done with impunity. But the very object of a highway is that it may be used, and though travel be its primary use, it still may be put to other reasonable uses; and whether a particular use of it which does not amount of itself to a nuisance, is reasonable or not, is a question of fact to be judged of by the jury according to the circumstances of the case. "Unlike the case of a permanent obstruction just referred to, it is not the manner of using the highway which constitutes the nuisance, but the inconven ience to the public which proceeds from it, and unless such inconvenience really be its consequence, there is no offense committed. "We have made careful reference to the leading English cases on this subject (which are admitted by all the authors to be Rex v. Russell,2 Rex v. Jones, and Rex v. Cross); and in each and every one of them, the use of the highway which was the subject of prosecution was shown not such as might, but such as actually did obstruct travel therein, and impair its enjoyment by the public. And so it is in every case decided by the courts of the several States, which have come under our observation, and it must needs be so since the question as to which is a proper and reasonable use of a highway must depend in a great measure upon its locality, its accustomed usage, and the exigencies of the public, it being apparent that what would obstruct travel and work inconvenience to the public in the crowded streets of London, or on Broadway, in New York, might be harmless in the streets of a less populous place. "Understanding the verdict of the jury to be that the defendant by occupying with his mule and cart the position he did, and for the space of time he did, interposed no obstacle to travel and caused no actual inconvenience to the public, we are of the opinion that it was error in the court below to give judgment against him in the premises. Let this be certified to the Criminal Court of New Hanover County, to the end that the defendant may be discharged. "Error. Reversed." § 273. Footwalks, Trees and Hitching-Posts on Highways. — In Commonwealth v. Houck, in the Cumberland County (Pa.) Quarter Sessions, 1885, the owner of a lot fronting on a street thirty-six feet wide, in an unincorporated villiage of five hundred inhabitants, set a curb seven and a half feet within the street, parallel to the boundary of the lot, laid a brick pavement between this 1 85 N. C. 526 (1881). 2 6 East, 427. 33 Camp. 230. 4 Ib. 224. se. 2 curb and the boundary line, convenient for pedestrians, and placed shade trees and hitching-posts at the outer edge of the payment. Held, not a nuisance. The following opinion was delivered by HERMAN, P. J.: On the trial of this indictment the jury returned the following verdict: "Boiling Springs is a village unincorporated, containing five hundred inhabitants. Third Street, as shown by the plan, was laid out and dedicated by Dr. Kauffman to public use as a street and public highway over twenty years ago. As opened and dedicated, it was thirty-six feet wide. The defendant, Houck, owner of a house built within six inches of the line of this street, put in curbstones and laid a pavement eight feet wide, being seven and one-half feet into the highway, along his house and lot, and planted six trees and put in two hitching-posts along the outside edge of the pavement. If this amounts to a nuisance in law, then we find the defendant guilty in manner and form as he stands indicted; if not, then not guilty, and the county to pay the costs." The question for the court now is, do these acts thus done by the defendant constitute a nuisance in law? It is clear that they would be a nuisance, if the public street be thereby rendered inconvenient or dangerous to pass upon. This is not the case of a house erected or inclosure made upon any part of the highway, which being in its strict legal sense a purpresture, is always, from its very nature, considered a nuisance per Such were the cases of Respublica v. Caldwell,1 Commonwealth v. McDonald, Commonwealth v. King, and Commonwealth v. Wilkinson, cited by the coun sel for the Commonwealth. But here I am asked to say that a pavement laid on the margin of a public street, by an individual lot-owner along the line of his lot, in a populous village, and six trees and two hitching-posts planted and placed by him along the outside edge of the pavement, constitute a public nuisance, without it appearing that the street has been thereby rendered inconvenient or dangerous to pass upon, or that any part of it has been diverted from the ordinary and accustomed use of a village street, and this, too, although the street be thereby rendered more convenient and safe for travelers. This I can not do. A pavement or sidewalk in a village street is surely as essential to the ease and safety of public travel as is a carriage-way, and the want of either would be more likely to cause that kind of a nuisance resulting from the want of proper reparations. This is not merely a carriage-way, but a village street aid out and dedicated as such to the public use, and is, therefore, to be used and enjoyed as such public ways are ordinarily and customarily used and enjoyed. The people of unincorporated towns and villages have, I think, been universally accustomed to construct and maintain pavements or sidewalks on the margins of their public streets, for the accommodation, convenience and safety of pedestrians, and I can find no adjudicated case in which their right to do so has ever been questioned. Indeed, our act of the 6th of April, 1868, not only recognizes the lawfulness of such constructions, but provides for their protection, for it provides that "in all cases where sidewalks have been constructed in unincorporated towns and villages, or upon any public road, it shall not be lawful for any person to ride, lead or drive any beast of burden thereon; and if any person (not the owner of the property upon which such sidewalk is constructed, or on which it abuts), shall willfully ride, lead or drive, or cause to be driven any beast of burden thereon, such person shall, for every such offense, forfeit and pay a sum not less than $5, nor more than $10 to be sued 1 1 Dall. (U. S.) 150. 2 16 Serg & R. (Pa.) 390. 3 13 Metc. (Mass.) 118. for and recovered as fines and pecuniary penalties are recovered under the seventy fifth section of the act of June 13th, 1836," etc. What the law protects can not be regarded as a nuisance in law, for it is the policy of the law to abate, not protect, a public nuisance. That the pavement was constructed by the owner of the property on which it abuts, and not by or under the direction of the town supervisors, does not make the act a nuisance. It has never been considered the business of the supervisors to construct pavements or sidewalks, especially is it not their business to do this upon a village street, laid out and dedicated as this street was. The right of the defendant to construct, and of the people to the use of the pavement, in no way depended on the will or pleasure of the township supervisors. Nor does the width of this pavement, being seven and one-half feet on a street thirty-six feet wide, furnish a sufficient reason for declaring it a nuisance per se. Assuming that a pavement of the same width be also laid on the opposite margin, ample space still remains for a carriage-way. The six trees planted by the defendant along the outside edge of the pavement is in accordance with such a general practice, long prevailing in this region of the country, that it is hard to understand how any one can regard them as a nuisance in law. To say that they are, seems an absurdity. But that they are not, is put beyond any doubt by the act of the 2d of May, 1879,2 which was passed to encourage the planting of trees along the roadsides in this Commonwealth, and provide for their protection. What the laws of the Conmonwealth thus encourage and protect will not be denounced as a public nuisance, unless, in fact, the highway be thereby rendered inconvenient or dangerous to public travel. Hitching-posts placed as these were along the edge of a pavement in a village street, I do not consider as constituting a nuisance per se. These posts would be more likely to cause annoyance to the defendant himself than to the public. I do not mean to say that a pavement can not be constructed in such a manner or that trees or hitching-posts may not be so placed in a village street as to create and canse an indictable nuisance, if, in fact, the public street were thereby rendered inconvenient or dangerous to public travel. What I decide is, that upon the facts of this case, the defendant having laid down a pavement seven and one-half feet in the width on the margin of the village street abutting on his own property, and placed six trees and two hitching-posts along the outside edge of the pavement-the street being thirty-six feet wide-it does not necessarily follow, as a legal consequence that these acts constitute a public nuisance. It must, therefore, be entered as the verdict of the jury that the defendant is not guilty, and that the county pay the costs. § 274. Illegal Act of Officers. It is a defence to an indictment for obstructing a road, that the officer had no authority to make it or made it illegally.3 § 275. Street not Accepted. It is not an indictable nuisance to obstruct a street which has been dedicated but not accepted by the municipality, or one not recorded as required by law.5 1 Purd. Dig. 1285, pl. 109. 2 Pamph. L. 47. This act directs that any person who plants on his own premises, at the side of any public highway, any tree of suitable size, shall be allowed $1 for every four trees so set out, in abatement of his road tax. It imposes a penalty on any person who shall cut down, kill or injure any living tree planted as aforesaid. 3 Ward v. State, 12 La. 469 (1883). 4 Gedge v. Com., 9 Bush, 61 (1872); State v. Bradbury, 40 Me. 154 (1855). And see State v. Whittaker, 66 N. C. 630 (1872). 5 People v. Lawson, 17 Johns. 277 (1820). others, the owners of certain goods and chattels then laden and being on board said ship." It was proved that the Zemindar, was on her voyage home with a cargo of rum, sugar, and cotton, worth fifty thousand pounds. That the prisoner was a seaman on board; that he went into the forecastle hold, opened the sliding door in the bulkhead, and so got into the hold where the rum was stored; he had no business there, and no authority to go there, and went for the purpose of stealing some rum; that he bored a hole in the cask with a gimlet; that the rum ran out; that when trying to put a spile in the hole out of which the rum was running he had a lighted match in his hand; that the rum caught fire; that the prisoner himself was burned on the arms and neck; and that the ship caught fire and was completely destroyed. At the close of the case for the Crown, counsel for the prisoner asked for a direction of an acquittal on the ground that on the facts proved the indictment was not sustained, nor the allegation that the prisoner had unlawfully and maliciously set fire to the ship proved. The Crown contended that inasmuch as the prisoner was at the time engaged in the commission of a felony, the indictment was sustained, and the allegation of the intent was immaterial. At the second hearing of the case before the Court of Crown Cases Reserved, the learned judge made the addition of the following paragraph to the case stated by him for the court. "It was conceded that the prisoner had no actual intention of burning the vessel, and I was not asked to leave any question to the jury as to the prisoner's knowing the probable consequences of his act, or as to his reckless conduct." The learned judge told the jury that although the prisoner had no actual intention of burning the vessel, still if they found he was engaged in stealing the rum, and that the fire took place in the manner above stated, they ought to find him guilty. The jury found the prisoner guilty on both counts, and he was sentenced to seven years penal servitude. The question for the court was whether the direction of the learned judge was right; if not, the conviction should be quashed. DowSE, B., gave judgment to the effect that the conviction should be quashed. BARRY, J. A very broad proposition has been contended for by the Crown, namely, that if, while a person is engaged in committing a felony, or having committed it, is endeavoring to conceal his act, or prevent or spoil waste consequent on that act, he accidentally does some collateral act, which if done willfully would be another felony either at common law or by statute, he is guilty of the latter felony. I am by no means anxious to throw any doubt upon, or limit in any way, the legal responsibility of those who engage in the commission of felony, or acts mala in se; but I am not prepared without more consideration, to give my assent to so wide a proposition. No express authority either by way of decision or dictum from judge or text-writer has been cited in support of it. The authorities mainly relied upon are those which lay down that if homicide or the burning of a house be the direct, though unintended result of an act felonious or malum in se, the perpetrator will be guilty of murder or manslaughter or arson, as the case may be. As regards the case of homicide they may be referred to principles applicable to that class of offense, the authorities as to arsons are more in point, but they all put the case of an act felonious or malum in se, willfully done and directly causing the ultimate injury. As to whether there may be any substantial distinction between the act of lighting the match in the present case, and the shooting at the deer with the felonious intent in the authorities cited, or whether this doctrine of constructive willfulness, or malice extends to any but felonies at common law, I shall not pronounce any opinion, as I shall consider myself bound for the purpose of this case by the authority of Regina v. Pembliton.1 That case must be taken as deciding that to constitute an offense under the Malicious Injuries to Property Act, the act done must be, in fact, intentional and willful, although the intention and will may (perhaps) be held to exist in, or be proved by, the fact that the accused knew that the injury would be the probable result of his unlawful act, and yet did the act reckless of such consequences. The present indictment charges the offense to be under the forty-second section of the same act, and it is not disputed that the same construction must be applied to both sections. I confess, that as at present minded I am not altogether satisfied with that decision, so far as it seems to be rested upon the construction to be given the words: " unlawfully and maliciously" in that particular statute. To constitute the crime of arson at common law, the setting fire to the house must be unlawful and malicious, yet it is not disputed that a person firing a shot with a felonious intent, and thereby unintentionally burning a house is guilty of feloniously burning it; and certainly, it seems difficult to see why the words "unlawful and malicious,' when used to describe the essential attributes of the burning of a house as an offense at common law, are to receive a different interpretation from the same words when used in the statute, the object of which is simply to place the burning of a house and the burning of a ship in the same legal category. Perhaps the true solution of the difficulty is, that the doctrine of constructive malice or intention, only applies to cases where the mischief with which the accused stands charged would be, if maliciously committed |