State v. Beal

• Decision Date: 09 January 1901
• Citation: 48 A. 124,94 Me. 520
• Parties: STATE v. BEAL.
• Court: Maine Supreme Court

48 A. 124

94 Me. 520

STATE

v. BEAL.

Supreme Judicial Court of Maine.

Jan. 9, 1901.

(Official.)

Exceptions from supreme judicial court, Penobscot county.

Flavius O. Beal was indicted for maintaining a nuisance, and excepts. Exceptions overruled, and judgment for the state.

Indictment against the defendant for erecting, maintaining, and continuing a nuisance, to wit, a certain piazza on the front of the Penobscot Exchange Hotel, in Bangor, which obstructed a certain public highway known as "Exchange Street," in Bangor.

To the indictment respondent pleaded not guilty.

The alleged nuisance is set out in the indictment as follows: "And the jurors aforesaid, upon their oath aforesaid, do further present that Flavius O. Beal, of Bangor, in the county of Penobscot aforesaid, on the 1st day of October, A. D. 1898, did unlawfully and injuriously erect and build, and cause to be erected and built, in and upon the easterly side of said (Exchange) street a certain piazza, sixty-three feet long and six and sixty-five one-hundredths feet wide, with a platform three and one-half feet high, and with a roof over the same supported by pillars and steps, leading from the sidewalk upon said street to the platform of said piazza on the north and south ends thereof, and steps leading from the sidewalk to said platform on the westerly side thereof; said piazza being attached to and built upon the westerly side of a certain hotel located upon the easterly side of said (Exchange) street known as the 'Penobscot Exchange.'"

It was admitted that the easterly bounds of Exchange street can be made certain by records or monuments; that May 6, 1836, said Exchange street was widened by the city of Bangor 18 feet,—8 feet of land being taken on the easterly side of said street, and 10 feet being taken on the westerly side of said street; and that the easterly line of said Exchange street, as widened, ran parallel to the westerly wall of said Penobscot Exchange, and distant 5 inches therefrom.

The defendant offered testimony tending to show that three flights of stone steps upon the westerly side of said Penobscot Exchange, leading up into said hotel from Exchange street, and two flights of stone steps or rollways, leading down from said street into the basement on said westerly side of said hotel, one flight or rollway being located near the northwesterly corner of said hotel, and the other flight or rollway being located near the southwesterly corner of said hotel, had existed from the time said hotel was built, in 1828, until 1880, and that in consequence thereof, and by virtue of the statute, the line of said stone steps and rollways became the true bounds of Exchange street, so far as the territory covered by the steps and rollways was concerned.

The defendant also offered testimony tending to show that portions of the said piazza described in said indictment as constituting a nuisance were erected within the limits of the territory covered by said stone steps and rollways.

It was admitted by the defendant that so much of said piazza as was not erected within the limits of the territory covered by said stone steps and rollways was within the limits of said Exchange street.

The court instructed the jury as follows: "On the other hand, the contention of the government is, in the first place, that the steps are not a part of the building, and, no matter for what period they existed, they could not change the bounds of Exchange street; and, in the second place, that even if it were true in law that the steps were a part of the building, and true in fact that they existed for a period of forty years, so that the bounds of the street, as to the territory covered by the steps, would be thereby changed, that as a portion of this piazza was still within the limits of the street as claimed by the state, and as admitted in substance by the defense, that the position on the part of the respondent would constitute no defense to this indictment. Now, gentlemen, I instruct you, as a matter of law, that if you are satisfied—and I understand it is admitted or that there is no substantial contention about it—that the bounds of Exchange street can be made certain by records, as has been testified to by Mr. Coombs, and that a portion of the piazza was erected by Mr. Beal within the limits of Exchange street, then all the evidence introduced by the defense in this case, admitting it to be true, would constitute no defense to this indictment."

The Jury returned a general verdict or guilty.

The defendant requested the following instructions:

"(1) That the stone steps leading to the Penobscot Exchange constituted a part of the building itself, and although the jury should find that the bounds of Exchange street were made certain, and that said stone steps stood within said bounds, yet, if said steps had so stood for forty years subsequent to May 6, 1836, then the erection and continuance of said steps on Exchange street, until they were torn down (in 1880), were legally justified, and said steps did not and could not be deemed a nuisance.

"(2) That if the jury find that the stone steps stood and were maintained within the line of Exchange street for a period of forty years subsequent to May 6, 1836, then said steps as located became the bounds of said street at the points of their location; and if, upon removal thereof in 1880, other steps were erected in their place, such new steps', so far as they covered the territory embraced within the limits of the stone steps, are not and cannot be deemed a nuisance.

"(3) That so much of the present structure as is built and maintained upon the land covered by the stone steps leading to the Penobscot Exchange is lawfully there, and is not and cannot be deemed a nuisance.

"(4) That, in order to convict, the government must prove the nuisance as laid in the indictment; that the nuisance as laid in the Indictment is a certain piazza 63 feet long and 6 and 65/100 feet wide, with a platform 3 and 1/2 feet high, and with a roof over the same supported by pillars and steps leading from the sidewalk upon said street to the platform of said piazza on the north and south ends thereof, and steps leading from the sidewalk to said platform on the westerly side thereof; that the whole structure just described is indicted as an entity, and in its entirety as constituting the nuiance, but if the jury find that any portion or portions of said structure are within the limits of the stone steps as aforesaid, and that said stone steps had existed for forty years subsequent to May 6, 1836, then such portion or portions are legally there, and do not constitute a nuisance.

"(5) The alleged nuisance being described in the indictment with exactness and particularity as a piazza 63 feet long, 6 and 65/100 feet wide, with a platform 3 and 1/2 feet wide, etc., and it being impossible to strike out the whole averment without taking from the indictment the part essential to the allegation of the offense intended to be charged, it is necessary that the whole description should be proven exactly as it is set forth; and if you are satisfied that the stone steps, or any flight thereof, existed continuously for a period of...