The Commonwealth v. Church

• Decision Date: 01 January 1845
• Citation: 1 Pa. 105
• Parties: THE COMMONWEALTH v. CHURCH.
• Court: Pennsylvania Supreme Court

Page 105

1 Pa. 105

THE COMMONWEALTH v. CHURCH.

Supreme Court of Pennsylvania.

IN ERROR.

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Rawn, for the Commonwealth.

The court assumed, that the indictment in this case was for the erection of a dam for such purposes as is authorized by the first section of the act of the 23d of March, 1803, relating to mill-dams in streams declared public highways; although it was admitted, that it was merely for the purpose of creating a pool to hold the logs to be sawed at the steam saw-mill of the defendant on the shore.

He contended that the act only authorizes dams for a mill or mills, or other water-works, to lead off thereby so much of the water of such stream as may be necessary for his or their mill or mills or other water-works. The second section of the act requires the appointment of commissioners only in case of the erection of such a dam, for the purposes stated. It did not appear on the face of the indictment, that defendant's erection was such a dam. The court, therefore, had no ground upon which to quash the indictment, without assuming that which did not appear, and against what was expressly admitted. This they had no right or power to do, particularly after a plea of the general issue and jury sworn.

The defendant should have pleaded it specially, if he pretended that his case was within the provisions of the act, or he should have required the court to direct the jury to find a special verdict, stating the facts. If his special plea were admitted and demurred to, or the jury found upon it in his favour, the court would have quashed in the first instance, or arrested the judgment in the latter. He cited Commonwealth v. Searle, 2 Binn. 332, and Commonwealth v. White, 6 Binn. 182, on the conclusion of indictments; 1 Chitty's Crim. Law, 247, 249, and 4 Yeates' Rep. 69, on the subject of quashing indictments. He also cited Commonwealth v. Brown, 3 Serg. and Rawle, 276, and Kelly v. The Commonwealth, to show that obstructing highways was an offence at common law, and not extinguished by the act of 6th of April, 1802.

McCormick, for defendant in error.

An indictment at common law will not lie for erecting a dam in a stream declared a public highway; but the remedy provided by the act of 1803 must be pursued. Brown v. Commonwealth, 3 Serg. and Rawle, 273. Where a civil injury is sustained from such a dam, the same remedy must be pursued. Oliphant v. Smith, 3 Penna. Rep. 180; Criswell v. Clugh, 3 Watts, 330. Where a remedy is provided by an act of Assembly, the direction of the act should be strictly pursued; and nothing done according to the provisions of the common law, act of 21st of March, 1806, Purdon's Digest, 56. The Swatara river declared a public highway by act of 9th of March, 1771, 1 Smith's Laws, 324. The act of 1803 is a beneficial one, and ought to be liberally construed; it is, therefore, a protection for a dam erected for a steam-mill, and the rule ought to be to preserve every dam within the act until a new one has been had under its provisions.

Fisher, in reply.

The opinion of the court was delivered by GIBSON, C. J.

In this instance, we have strictly no more before us than an indictment of nuisance for erecting a dam in the Swatara river, and the order by which it was quashed. Now, the erection of a dam in a stream which is a highway, is primâ facie indictable simply as a nuisance, not in subordination to the act of 1803, but according to the course of the common law; and if the defendant will protect himself...