State v. Goldberg

• Decision Date: 08 January 1932
• Citation: 158 A. 364
• Parties: STATE v. GOLDBERG.
• Court: Maine Supreme Court

158 A. 364

STATE

v. GOLDBERG.

Supreme Judicial Court of Maine.

Jan. 8, 1932.

Report from Superior Court, Kennebec County.

Max Goldberg was prosecuted for incumbering a public way. On report.

Nolle prosequi.

Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, PARRINGTON, and THAXTER, JJ.

H. C. Marden, of Waterville, and Paul F. Fitzpatrick, of Gardiner, for the State.

Geo. W. Heselton and Will C. Atkins, both of Gardiner, for defendant.

DUNN, J.

This case is up on report.

Incumbering a public way by buildings is, within certain limitations and exceptions, an indictable nuisance. Rev. St. c. 26, § 5. The statute is but declaratory of the common law. Corthell v. Holmes, 88 Me. 376, 34 A. 173.

When buildings have fronted, for more than twenty years, as of right, on a way, the bounds of which cannot be made certain, either by records or monuments, or have so existed for not less than forty years, when records or monuments make it possible to determine the exterior limits, the buildings shall be deemed the boundaries. Rev. St. c. 27, 8 108; Vye v. City of Medford, 266 Mass. 208, 165 N. E. 34.

The effect of the statute is to invest in the abutting landowner a prescriptive right to continue his building within the street limits, without liability for interfering with the public easement. Structures such as outside stairways, designed to furnish necessary access from a street to buildings adjacent the stairways, have been held to be a part of the "building." Smith v. Adams, 206 Mass. 513, 92 N. E. 760; Pickrell v. City of Carlisle (1909) 135 Ky. 126, 121 S. W. 1029, 24 L. R. A. (N. S.) 193.

There are two counts in the present indictment, but the evidence relates only to the first. This count charges the respondent with incumbering Church street, a public way in the city of Gardiner, by maintaining a flight of twelve wooden steps, and an upper landing, within the northerly line of that street.

The respondent owns a block at the northwest corner of Church and Water streets. The steps and landing which afford entrance to the second story of the building are attached as a shelf to its outer southerly wall. The state contends that, of their entire width of forty-four inches, only twelve inches of the stairs and landing are without the street; in other words, in closer statement of the charge in the indictment, that thirty-two inches of the structure projects into the street. If part of the stairs and landing are within the street, the fact that other parts are not would constitute no defense. State v. Beal, 94 Me. 520, 48 A. 124.

The first question which naturally presents itself is whether the stairs and landing place are proved, beyond a reasonable doubt, to...