The charge in the indictment concluded, "to the great damage and common nuisance of all good citizens of the State, going, returning, and passing through and along the said common road and public highway and being and residing near thereto." *Page 579
The defendant excepted to the charge of the court, for that the (892) court instructed the jury that if the defendant allowed his slaughter-pen to be and remain in such condition that the stench arising therefrom seriously annoyed the public traveling said highway, he would be guilty; that it was not necessary for the public to be actually present on said highway, but that if such of the public as did travel said highway were seriously annoyed and inconvenienced by said odors the defendant would be guilty. No question was made on the trial as to whether or not this was a public highway, nor did the court charge the jury whether or not it was a public highway according to the evidence, nor did it tell the jury what constituted a public highway, nor did the defendant request the court so to do, but the charge was based upon the idea that the road was a public highway. The defendant excepted, for that the court did not instruct the jury as to what constitutes a public road, and did not tell the jury that the evidence did not show this to be a public road. There was a verdict of guilty, and the defendant appealed from the judgment rendered. There was no attempt to prove that any person (893) other than the witness Britt lived in the vicinity of the slaughter-pen or was subject to annoyance at his house by the offensive odors emanating from it. There was no testimony, therefore, tending to show that the community generally were affected injuriously by such noxious smells, and the court very properly declined to submit to the jury the question whether such an injury to the residents of the neighborhood had been shown as amounted to a public nuisance. S. v. Holman, 104 N.C. 861. The question whether Britt has sustained any wrong as an individual, for which he can maintain a civil action, is one that can be tested without invoking the aid of the criminal process of the State.
The court, assuming that the road which ran within 380 yards of the pen was a public highway, told the jury that "if such of the public as did travel said highway were seriously annoyed and inconvenienced by said odors, the defendant would be guilty." It seems that the attention of the solicitor was directed to the necessity of proving that the road had been devoted to public use, since testimony was offered tending to show that the location of it had not been actually changed at that point for more than twenty years, and that it had been worked as a public road for four or five years. When objection was made to the admissibility of the testimony that Britt was annoyed by the noxious smell at *Page 580 his house, the court assigned as a reason for declaring the evidence competent that it tended to show the nuisance to persons passing on the highway. There is no such offense known to the criminal law as a public nuisance to persons passing along a private country road, created by disagreeable or noxious smells, 2 Bishop Cr. Law, sec. 1266 (1). It was, therefore, of the essence of the charge that the annoyance (894) should have been suffered by persons who were then using the road as a public highway. 1 Bishop, supra, sec. 531 (2), note 3. The mere use of a way for twenty years by persons generally for vehicles or traveling on foot does not constitute it a highway (Stewart v. Frink,94 N.C. 487), nor, in the absence of evidence of condemnation or actual dedication, does proof that the public have exerted control over it for any period less than twenty years tend to show that an easement has been acquired by user, which raises the presumption of a grant. Kennedy v.Williams, 87 N.C. 6; Boyden v. Achenbach, 79 N.C. 539; S. v. McDaniel,53 N.C. 284; S. v. Johnston, 61 N.C. 140; S. v. Long, 94 N.C. 896. The guilt or innocence of one charged with a nuisance in obstructing a public road or creating an odor that is unwholesome or disagreeable to those who travel along it, depends not upon the question whether all the inhabitants of the neighborhood are actually accustomed to travel over it, but whether they have a right to use it is a highway. 1 Bishop, supra, sec. 245; S. v. Smith, 100 N.C. 550. If an indictment for obstructing the passage of a private cartway, or for creating odors offensive or noxious to those entitled to use it, would lie at all, it would be essential to charge and to prove that it had been "established by law" for a particular person or persons as a means of ingress and egress to and from a certain place. S.v. Purefoy, 86 N.C. 681.
It is not necessary to discuss the other question to which our attention has been directed and which gave rise to an exception in the course of the trial; yet, if it should be proved or admitted on another trial that the road was a public highway, it might be well to consider whether testimony tending to prove that the odor of the pen was offensive to persons at a distance of 270 yards from it should be submitted to (895) the jury without additional evidence to show that persons passing along a highway 110 yards further in the same direction were annoyed by it.
There was an absence of evidence tending to show either that any one while passing along said road was actually annoyed, or that the public had acquired an easement in it; therefore the prosecution has failed to make good an essential charge in the indictment by proving *Page 581 annoyance to persons passing along "a common road and public highway," and the court erred in failing and refusing to tell the jury that the defendant was not guilty in any aspect of the testimony.
The verdict must be set aside.
NEW TRIAL.
Cited: S. v. Eason, 114 N.C. 796; S. v. Haynie, 169 N.C. 283.