People v. Livingston

Learned, P. J.

The defendant’s wife, without dispute, is the owner of the land in question, and he acting for her erected the alleged obstructions. He was indicted not only for erecting but for continuing these obstructions to an alleged highway, and the jury have found him guilty, as charged in the indictment, on such a verdict, the judgment is that defendant at his own cost abate the nuisance within a certain time, and in default thereof that process issue to the sheriff commanding him to abate the nuisance at the defendant’s cost (Muson agt. People, 5 Park. Crim. R., 16; 2 Whar. Crim. L., sec. 2377). Because the verdict of the jury has found the defendant guilty of continuing the nuisance, therefore the court on this verdict may adjudge that the defendant abate a nuisance on property, which it is admitted does not belong to him, and if he fails to do this then the court may direct the sheriff to abate a nuisance on property of a person, viz., Mrs. Livingston, who has never been heard as to her right to maintain the structure and who is not a party.

I do not mean that a person who erects a nuisance cannot be convicted of that act and fined. Possibly (although I express no opinion on this) the jury in this case might have rendered a verdict of guilty of erecting but not of continuing. But the fact is, that the jury have convicted the defendant of continuing as well as of erecting the nuisance, while, as it is shown that the defendant is not the owner, he cannot, in my opinion, be convicted at least on this proof of continuing. If Mrs. Livingston were the successor to the defendant she would be liable for the continuance of the alleged nuisance (Brown agt. Cayuga R. R. Co., 12 N. Y., 476). This . defendant would not be hable unless he derived some benefit, as by demising the premises and receiving rent, or by conveying with covenants for the continuance of the nuisance (Mayor agt. Cunliff, 2 N. Y., 174; House agt. Corning, 1 Lansing, 288). Much less would the defendant be liable for the continuance if Mrs. Livingston was not his successor, and if he had erected the nuisance only as her agent.

It may be said that it is not necessary that the court should adjudge that the defendant abate the nuisance and that the court may merely impose a fine; but I do not think that a verdict can stand which finds the defendant guilty of continuing a nuisance he does not continue, and which exposes him to a judgment which he cannot perform.

There are perhaps other reasons why this conviction should be reversed, but I deem this sufficient.

It should be said in justice to the learned judge who tried this case, that his attention was not in any way called to the point above suggested, and that he could not be expected to notice it, as he very probably did not see the indictment.

The conviction should be reversed and a new trial granted.

Landon, J.

I advise the reversal of this conviction upon the ground that the evidence entirely fails to show that the locus m quo was a public highway, and it was therefore the duty of the court to direct an acquittal (People agt. Bennett, 49 N. Y., 139).

Fifty years ago the owner of the lot told some of his neighbors that if they would help him build a stone wall from the main road to the lake, they could drive their sheep to the lake and wash them there; they helped him build the wall and since then these persons and their successors, as they had occasion, drove their sheep across this lot which adjoined the Knox road on one side and the lake on the other, to an inclosure upon the lake shore and there washed them. As this lot was unfenced along the Knox road the public in passing to and from the lake crossed it where it was most convenient. Picnic parties, fishermen and others crossed over it to and from the lake. In the winter ice was drawn from the lake across it, and sometimes when the lake was frozen teams were driven across it to and from the lake.

There is no regular traveled road across the lot, and the evidence is that when people crossed it they did so in different places. The sheep, it is true, made a beaten path from the Knox road to the sheep pen, but there does not appear to have been any other well-defined path. All over the lot were wagon and cattle tracks, and the evidence fails to show that the travel, except by the sheep, was in an uniform route; and except that at the shore of the lake the tracks were more united. After suffering this miscellaneous trespassing for so many years, doubtless from motives of kindness and good nature, and because the land was not regarded as valuable, the owner has thought proper to enclose it and erect some buildings upon it, thereupon her husband, who has acted as her agent in this matter, has been convicted of wickedly creating and maintaining a nuisance in a public highway. The sheep path upon which the buildings in part stand is charged to be the public highway, and the east fence, or side of the sheep pen, is charged in the indictment to be one of the termini of this highway.

The license given by the owner of the land to those who helped him build his stone wall to drive their sheep across his lot conferred no right upon the public, v The public did not build the wall. The license was to the wall builders, and it does not appear that it was ever extended to any except those claiming under that license.

This was a particular use permitted to a certain class of persons in consideration of service rendered, and in no way inured to the benefit of the general public. Leaving the sheep path out of the case and no road across the lot ever existed, unless the whole lot should be condemned for that purpose.

The indictment describes a road forty-nine and one-half feet wide along the stone waff and covering the sheep path. It is possible from the evidence that that particular part of the lot was used less than any other.

If all the travel across the lot for the last twenty years had been confined to one route it is not improbable that a highway by user would have been located and established, but the burden was upon the people to prove a highway over the route they described, and this they utterly failed to do.

Boardman, J. — I concur with opinion of brother Learned, but dissent from new trial on facts.