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and dangerous to the health, comfort, or property of indi viduals, or the public; causing or suffering any offal, filth, or noisome substance to be collected, or to remain in any place to the prejudice of others; obstructing or impeding, without legal authority, the passage of any navigable river, harbor, or collection of water; corrupting, or rendering unwholesome, or impure, the water of a river, stream, or pond; unlawfully diverting it from its natural course or state to the injury or prejudice of others; and the obstructing or incumbering by fences, buildings, or otherwise, the highways, private ways, streets, alleys, commons, common landing-places, or burying-grounds, shall be deemed nuisances within the limitations and exceptions hereafter mentioned."

(b) By the common law of this State, the beds of creeks, less than one hundred rods in width, where the tide ebbs and flows, became the property of the owners of the land through which they passed, except that such proprietors are not allowed "to stop or hinder the passage of boats, or other vessels, in or through any creeks or coves to other men's houses or lands." Any such proprietor, therefore, may make use of the land forming the bed of such creek, and of the space above it, provided he does not obstruct such navigation. Any such obstruction would be a public nuisance; and though abatable by any one, or indictable as such, could not form the subject of an action at the suit of an individual, unless he could make it appear that he had sustained special damage thereby.7

(c) Although a public nuisance is to be prosecuted by the public, yet if it have occasioned to an individual any special damage, not common to others, he may maintain a suit for the injury.8

(d) All hinderances or obstructions to navigation, without direct authority from the legislature, are public nuisances.9

(e) A dam or bridge erected over navigable waters, under authority from the legislature, in such a manner as to impede navigation beyond what the act authorizes, is pro tanto a nuisance; which principle is applicable to streams capable, in their natural state, of floating boats and logs.9

(f) To obstruct or occupy with any waste material, or to an unreasonable extent even with valuable property, a safe and convenient passage through or by a dam, for rafts, logs, &c., on a floatable highway, is a public nuisance.10

(g) A public nuisance can never be legitimated by the lapse of time; and the remedy against it, by abatement, is in all respects concurrent with that by indictment.11

6R. S. c. 17, § 5.-7 Low v. Knowlton, 26 Me. 128.-8 Cole v. Sprowl, 35 Me. 161. Knox v. Chaloner, 42 Me. 150; State v. Freeport, 43 Me. 198.-10 Veazie v. Duinel, 50 Me. 479; Gerrish v. Brown, 51 Me. 256.-11 Knox v. Chaloner, supra; Brown v. Black, 43 Me. 443.

(h) Nuisances may be committed by the unlawful use of a highway, for which those committing them may be liable civilly to persons who suffer special damage therefrom, and they may be punished criminally therefor by indictment.12 Thus, the carrying of an unusual weight with an unusual number of horses; the driving of a carriage through the crowded street with dangerous speed; the selling by auction in the public thoroughfares, are nuisances.12

(i) From evidence that a person uses his own property in such a manner as to injure another in his property, comfort, or convenience, the jury would be authorized to infer that he was guilty of a nuisance.13

(j) If a private citizen be guilty of a nuisance in making an excavation in a public highway, he will be responsible for injuries arising therefrom during its continuance.14

(k) A tomb erected upon one's own land, is not necessarily a nuisance to his neighbor; but it may become such from locality and other extraneous facts.15

6. The municipal officers of a town, when they judge it necessary, may assign some place or places therein for the exercise of any trade, employment, or manufacture aforesaid, and forbid their exercise in other places, under penalty of being deemed public or common nuisances, and liable to be dealt with as such. All such assignments shall be entered in the records of the town, and may be revoked when said officers judge proper.16

(1) For an indictment for exercising a noxious trade in a public locality, it is no defense that the town or city authorities have omitted to assign any place for the exercise of such trade.17

7. When any place or building so assigned becomes a nuisance, offensive to the neighborhood, or injurious to the public health, any person may complain thereof to the supreme judicial court, and if after notice to the party complained of, the truth of the complaint is admitted by default, or made to appear to a jury on trial, the court may revoke such assignment, and prohibit the further use of such place or building for such purposes, under a penalty not exceeding one hundred dollars for each month's continuance after such prohibition, to the use of said town; and may order it to be abated, and issue a warrant therefor, or stay it as hereafter provided; and if the jury, on

12 Davis v. Bangor, 42 Me. 522.-13 Norcross v. Thoms, 51 Me. 503.-14 Portland v. Richardson, 54 Me. 46.-15 Barnes v. Hathorn, 54 Me. 124.-16 R. S. c. 17, § 6.— 17 State v. Hart, 34 Me. 36.

said trial, acquits the defendant, he shall recover costs of the complainant.18

8. If a person carries on the business of manufacturing gunpowder, or of mixing or grinding the composition therefor, in any building within eighty rods of any valua ble building erected when such business was commenced, the former building shall be deemed a public nuisance; and such person may be prosecuted accordingly.19

9. A town, at its annual meeting, may prohibit the burning of bricks, or the erecting of brick kilns within such parts thereof as they deem for the safety of the citi zens or their property. And if any person, by himself or others, violates such prohibition, the municipal officers shall cause said bricks or brick-kiln to be forthwith removed, at the expense of the owner thereof; and the of fender shall be liable to a fine not exceeding two hundred dollars to the use of said town; and if said bricks or brickkiln are not removed before a conviction, the court may issue a warrant for the removal thereof, or stay it as hereafter provided.20

10. The erecting and maintaining of water-mills and dams to raise water for working them upon or across streams not navigable, as provided in the chapter relating thereto, shall not be deemed nuisances, unless they become offensive to the neighborhood or injurious to the public health, or unless they occasion injuries or annoyances of a kind not authorized by said chapter. Fences and buildings fronting on public ways, commons, or lands appropriated to public use, shall not be deemed nuisances, when they have been erected for the times and in the manner provided in section seventy-six, chapter eighteen, R. S.21

11. Whoever is convicted of erecting, causing or continuing a public or common nuisance, as herein described or at common law, where no other punishment is specially provided, may be punished by a fine not exceeding one hundred dollars; and the court, with or without such fine, may order such nuisance to be discontinued or abated, and issue a warrant therefor as hereafter provided.22

18 R. S. c. 17. § 7.—19 R. S. c. 17, § 8.—20 R. S. c. 27, § 9.-21 R. S. c. 17, § 10.22 R. S. c. 17, § 11.

(m) In an indictment for causing a nuisance, it is not necessary to allege that the nuisance was continued.23

12. Any person injured in his comfort, property, or the enjoyment of his estate by a common and public, or a private nuisance, may maintain against the guilty party an action on the case to recover his damages, unless it is otherwise specially provided by law.24

(n) If one of two tenants in common of a mill use it to the nuisance of a stranger; the other owner, not actually participating in the wrong, is not liable.25

(0) In an action of the case for diverting water from the plaintiff's mill, it is no defense that the mill stands within the limits of tide-waters, and is therefore a public nuisance.25

(p) An action may be maintained as well for continuing a nuisance erected by another, as for the original erection.26

(q) A purchaser of property on which a nuisance is erected, is not liable for its continuance unless he has been requested to remove it.26

(r) When one returning home with a loaded team is stopped by obstructions placed in the highway, and compelled to take a more circuitous route, he is entitled to recover damages from the person who placed the obstructions there.27

(s) For an injury to a private person, by a common nuisance, however inconsiderable, he may maintain an action.27

(t) This section does not embrace the injuries a wife sustains by the death of her husband caused by the negligent use of a steam-engine.28

(u) If the owners of a mill cast the slabs, edgings, and other waste of the mill into the river, to be floated away by the stream, and thereby the navigation of the river is obstructed, or the rights of private individuals are infringed upon, they will be liable to an action for the damage caused by their unauthorized acts.29

13. When, on indictment, complaint, or action, any person is adjudged guilty of a nuisance, the court, in addition to the fine imposed, if any, or to the judgment for damages and costs, for which a separate execution shall issue, may order the nuisance abated or removed at the expense of the defendant; and after inquiring into and estimating, as nearly as may be, the sum necessary to defray the ex

23 State v. Hull, 21 Me. 84.-24 R. S. c. 17, § 12.-25 Simpson v. Seavey, 8 Me. 138.-26 Pillsbury v. Moore, 44 Me. 154.-27 Brown v. Watson, 47 Me. 161.-28 Lyons v. Woodward, 49 Me. 29.-29 Gerrish v. Brown, 51 Me. 256.

penses thereof, the court may issue a warrant therefor substantially in the form following:

[Name of county], ss.

STATE OF MAINE.

To the sheriff of our county of -, or either of his deputies.

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GREETING. "Whereas, by the consideration of our court, begun and held at "[describing the court and the term], "upon indictment" (or "complaint," or "action in favor of A. B.," as the case may be), "C. D., of —, &c., was adjudged guilty of erecting” (“causing," or "continuing") a certain nuisance, being a building in said. and for," or, "fence," or other thing, describing particularly the nuisance and the place], "which nuisance was ordered by said court to be abated and removed: We, therefore, command you forthwith, to cause said nuisance to be abated and removed; and also that you levy of the materials by you so removed, and of the goods, chattels, and lands of the said C. D., a sum sufficient to defray the expense of removing and abating the same, not to exceed the sum of dollars" (the sum estimated by the court), "together with your lawful fees, and thirty-three cents more for this writ. And, for want of such goods and estate to satisfy said sums, we command you to take the body of the said C. D. and him commit unto our jail in W., in said county, and there detain till he pay such sums or is legally discharged. And make return of this warrant, with your doings thereon, within thirty days. Witness A. R., Esq., at —, this in the year of our Lord -.

day of -, "J. S., Clerk."

And when the conviction is upon an action before a trial justice, and no appeal is made, the justice, after estimating the sum necessary to defray the expense of removing or abating the nuisance, may issue a like warrant, making corresponding alterations in its form.80

(v) An abatement will not be required when strangers to the proceedings might be improperly affected.31

(w) An abatement may not be ordered, unless there be enough in the indictment to show that it continues.82

14. Instead of issuing such warrant, the court or justice may order it to be stayed on motion of the defendant and on his entering into recognizance in such sum and with such surety as the court or justice directs, in case of an indictment, to the State, or in case of a complaint or action, to the plaintiff, conditioned that the defendant will discontinue said nuisance, or that within a time limited

30 R. S. c. 17, § 13.-31 State v. Haines, 30 Me. 65.-32 State v. Hull, 21 Me. 84.

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