State v. Phipps
| Decision Date | 16 December 1853 |
| Citation | 4 Ind. 515 |
| Parties | The State v. Phipps |
| Court | Indiana Supreme Court |
ERROR to the Owen Circuit Court.
The judgment is reversed with costs. Cause remanded.
R. A. Riley, N. B. Taylor and J. Coburn, for the state.
Indictment against the defendant for erecting and maintaining a public and common nuisance. The charge is, that the defendant built a mill-dam across Rattle-Snake creek, in the county of Owen, and thereby overflowed a public highway, whereby the latter was obstructed, to the great damage, injury, and common and public nuisance, &c.
The Circuit Court quashed the indictment.
That such an obstruction of a public highway is a common nuisance there can be no question. 1 Hawk. P. C.--4
Blacks. Com. 167.--The State v. Miskimmons, 2 Ind. R. 440.
The fact that the defendant may have had his writ of ad quod damnum, and acquired a right to the use of the land of individuals for the purpose of flowing the water upon it, is no defence to the indictment. See R. S. 1843, p. 974, s. 66. Nor would even a prescription from a twenty years' continuance of the nuisance be of any avail to him. Mills v. Hall, 9 Wend. 315.
For such a nuisance, the party is liable to be indicted. See The State v. Virt, 3 Ind. R. 447.
The defendant has not thought proper to inform us by a brief what are the grounds of his objection to the indictment--the points embraced in this opinion being those discussed by the counsel for the state.
The judgment is reversed with costs. Cause remanded, &c.
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Gilmer , Gilmer v. Board of Commissioners of Marshall County
...a roadway, either by flooding or by a physical structure, constitutes a nuisance. See Langsdale v. Bonton, (1859) 12 Ind. 467; State v. Phipps, (1853) 4 Ind. 515. The facts of this case reveal the Board of Commissioners of Marshall County is eyeball-to-eyeball with a "nuisance," both in its......
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...maintained for more than 20 years, is well settled. To that extent, and no further, go the authorities cited by appellant. See State v. Phipps, 4 Ind. 515. See, also, Wood, Nuis. (2d Ed.) 769, 770; Pettis v. Johnson, 56 Ind. 139. It may be observed, however, that there are cases where the s......
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Zimmerman v. State
...such a nuisance. Bybee v. State, 94 Ind. 443; State v. Louisville, etc., R. W. Co., 86 Ind. 114; State v. Berdetta, 73 Ind. 185; State v. Phipps, 4 Ind. 515. therefore, that the indictment charges a public nuisance, if the offence was committed in 1886, clearly the appellant could not be co......
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Zimmerman v. State
...of such a nuisance. Bybee v. State, 94 Ind. 448;State v. Louisville, etc., Ry. Co., 86 Ind. 114;State v. Berdetta, 73 Ind. 185;State v. Phipps, 4 Ind. 515. Assuming, therefore, that the indictment charges a public nuisance, if the offense was committed in 1886, clearly the appellant could n......