This is a demurrer to an indictment for maintaining a common nuisance under E. S., c. 17, § § 17 and 19.
Section seventeen provides that, "No stationary steam engine shall be erected in a town, until the municipal officers have granted license therefor,” under certain restrictions therein named.
Section nineteen provides that, "Any such engine erected without a license shall be deemed a common nuisance without other proof than its use.”
Thus it will be seen that the erection of an engine without the prescribed license, though prohibited, is not legally a nuisance, but the use of such an one is. It would therefore seem to be immaterial whether the person using, is the same as the person erecting, or otherwise. But the use and the want of a license must concur. Both facts are material and traversable. Hence both must be alleged and as of a certain specified time and place.
*491In the first and second counts in the indictment the erection of the engine without a license, with the specified time and place, is alleged ; but there is no allegation of use.
In the third count the two facts are alleged, but the specific time applies to the use only. The allegation of the want of a license is, simply, that it was "before that time,” thus leaving it entirely uncertain whether that want had not been supplied, as it might have been, before the use of the engine.
As the two facts, the use and want of license, must exist at the same point of time, to make the engine a common nuisance every allegation in the indictment may be proved as laid, and yet the respondent guilty of no crime.
Exceptions sustained. Demurrer sustained. Indictment bad.
Peters, C. J., Walton, Virgin, Libbey and Foster, JJ., concurred.