State v. Kean

• Decision Date: 12 March 1897
• Citation: 69 N.H. 122,45 A. 256
• Parties: STATE v. KEAN.
• Court: New Hampshire Supreme Court

45 A. 256

69 N.H. 122

STATE

v. KEAN.

Supreme Court of New Hampshire. Hillsboro.

March 12, 1897.

Michael Kean was indicted for erecting and continuing a bay window upon and over Laurel street in Manchester, in violation of Pub. St. c. 77, § 8. Facts agreed. The defendant has erected and continued a bay window, as charged in the indictment, as a projection from his building upon Laurel street. The window extends four feet and seven inches within the limits of the street, but does not extend downward within eight feet of the ground. Laurel street is a public highway. The question reserved is whether, upon these facts, the defendant is entitled to the judgment of the jury. Case discharged.

James P. Tuttle, for the State.

Oliver E. Branch, for defendant.

PARSONS, J. "By the common law any one may abate a nuisance to a highway." 1 Hale, P. C. c. 75, § 12; Id. c. 76, § 61; 3 Bl. Comm. *5. To justify such action, it must appear that the object removed was an obstruction to the public travel,—an actual nuisance. In such case, "whether any object permanently placed, temporarily left, or slowly moving in a public highway" unnecessarily obstructs public travel, and therefore is a common nuisance, is a question of fact to be determined by the jury from all the circumstances of each particular case. Hopkins v. Crombie, 4 N. H. 520, 525; Graves v. Shattuck, 35 N. H. 257. "If any timber, lumber, stone, or other thing is upon a highway, incumbering it," a prompt remedy for the immediate removal of the obstruction is provided. Pub. St. c. 77, §§ 1-6. In proceedings under this statute, whether the object complained of is an incumbrance, and its removal necessary for the public convenience, are questions of fact to be determined upon competent evidence. Richardson v. Smith, 59 N. H. 517. The public, however, is entitled to the full and free use of all the territory embraced within the limits of a highway, not only for actual passage, but for all purposes that are legitimately incident thereto. Every actual encroachment upon a highway by the erection of a building or fence thereon, or any other permanent or habitual occupation thereof, is an invasion of the public right, even though it does not operate as an actual obstruction to public travel. Wood, Nuis. §§ 81, 250. "Where there is a house erected, or an inclosure made, upon any part of the king's demesnes, or of a highway, or common street, or public water, or such like public things, it is properly called a 'purpresture.'" 4 Bl. Comm. *167. "'Pourpresture' cometh of the French word 'pourprise,' which signifleth a close, or enclosure; that is, where one encroacheth, or maketh several to himself that which ought to be common to many." Co. Litt. 277b; Co. Magna Charta, 38, 272. Any unauthorized erection over a highway is a purpresture. Wood, Nuis. § 77; Knox v. Mayor, etc., 55 Barb. 404; Attorney General v. Evart Booming Co., 34 Mich. 462. Since the public right is co-extensive with the limits of the highway, that the traveled part is not thereby impeded is no defense to an indictment charging the erection or maintenance of a building or other construction within the highway. Rose. Cr. Ev. (3d Am. Ed.) 567; Com. v. Wilkinson. 16 Pick. 175; Com. v. King, 13 Mete. (Mass.) 115; Com. v. Blaisdell, 107 Mass. 234; Harrower v. Hitson, 37 Barb. 303; Dickey v. Telegraph Co., 46 Me. 483; Wright v. Saunders, 65 Barb. 214; Reg. v. Telegraph Co., 31 Law J. 167; Rex v. Wright, 3 Barn. & Adol. 681; Reimer's Appeal, 100 Pa. St. 182. This does not conflict with the adjoining owner's right to make any reasonable temporary use of the street which does not unnecessarily obstruct the public passage. 1 Hale, P. C. c. 96, § 49; Wood, Nuis. §§ 256, 257; Rex v. Cross, 3 Camp. 224; Rex v. Jones, Id. 230; Winchester v. Capron, 63 N. H. 605, 4 Atl. 795; Winship v. Enfield, 42 N. H. 197. 216; Chamberlain v. Enfield, 43 N. H. 356, 360, 301; Graves v. Shattuck, supra; Hopkins v. Crombie, supra; Makepeace v. Worden, 1 N. H. 10; Avery v. Maxwell, 4 N. H. 36; Copp v. Neal, 7 N. H. 275; Baker v. Shepard, 24 N. H. 208, 213. The defendant is charged with erecting and continuing a bay window upon and over a public highway. The bay window is a projection from the defendant's building, which extends into and over the highway four feet and seven inches, but does not extend downward within eight feet of the surface of the way. The sole question reserved is whether, upon the admission of these facts as charged, there is any question for the jury. The defendant claims that these facts do not show such obstruction of the highway as is contemplated in section 8, c. 77, Pub. St., because the bay window does not obstruct the traveled part of the highway, nor interfere with the travel upon the same, and that upon these facts it is a question for the jury whether they constitute an obstruction. The statute Is: "If any building, structure, or fence is erected or continued upon or over any highway so as to obstruct the same or lessen the full breadth thereof, it shall be deemed a public nuisance, and any person erecting or continuing the same shall be fined not exceeding fifty dollars; and the court shall order such building, structure, or fence to be removed." Id. The defendant's bay window is a "structure" erected and continued by him over the highway. It lessens the full breadth of the highway four feet and seven Inches at a point eight feet above the ground. The only question is whether the statute is aimed at mere encroachments upon the limits reserved for public use, or has as its object only the removal of actual impediments to the passage. The statute has been the law of the state for nearly 200 years. Its titie, when apparently first enacted. In 1714, was "An act to prevent encroachment upon highways." Laws 1696-1725, p. 32. The provincial act was re-enacted with the same title, with slight verbal change, February 27, 1786. Laws 1797, p. 315; Laws 1805, p. 334; Laws 1830, p. 581. In the revision of 1842 the act appears with the same title, "Encroachments on Highways," but greatly condensed, and in substantially its present form (Rev. St. c. 60), while the provision for the immediate removal of incumbrances is found in the preceding chapter, entitled "Incumbrances in Highways." The substance of the former act was also adopted February 27, 1786. It was not until 1867 that the two provisions were brought together into one chapter under the present head, "Incumbrances and Encroachments upon Highways." Gen. St. p. 151, c. 70. The legislature understood encroachment and incumbrance to be different evils requiring different remedies. An object is not an incumbrance in a highway unless it obstructs the use of the way, while an encroachment is an unlawful gaining upon the right or possession of another; as where a man sets his fence beyond his line. Bouv. Law Diet. Thus the title furnishes evidence that the object of the statute was the preservation of the limits of the public right, not the prevention of obstruction to travel. The less condensed form or expression of the early statute also gives aid as to its present meaning. Omitting needles? repetition not applicable to the present case it is: "No edifice, building, or fence what ever shall be raised, erected, built or set up in, upon, over, or across any of the said highways, roads, streets, * * * or any par. of them, whereby to stop them up or straighten the passage, or any ways lessen the full breadth of any such street." The three evils which might result from encroachment are described, and were: (1) Stopping up the street, actually preventing passage; (2) straightening, making narrow the path, and the passage difficult; (3) any ways lessening the full breadth of the street in the modern revisions and re-enactments of the statute the first two are written as a single clause, "to obstruct," but no change has been made in the last—"lessen the full breadth of the street." If a jury might find that the defendant's bay window did not stop up the street or straighten the passage, they could not find that, projecting four feet and seven inches over the highway, it does not to some extent lessen its full breadth. That a building so projecting into the highway upon the surface, but not so as to obstruct travel, is in violation of the statute, was decided In 1829 in Hopkins v. Crombie, 4 N. H. 520. The case was trespass for breaking and entering the plaintiff's close and removing a house frame....