Opinion,
Mr. Justice Stebbett:The indictment, in apt words, charges the defendants with creating and maintaining a public nuisance, in that they constructed a large building, and fence inclosing the same, upon and across a public street and highway known as “Federal lane,” extending from the public square in Allegheny city to the northern line of the “Reserve Tract,” and still maintain the same; whereby said highway is greatly obstructed, etc., so *60that the citizens of this commonwealth could not, and cannot now, go, return, pass and repass, in, upon, and along said highway, as they ought and were accustomed to do, to the great damage and common nuisance of all the citizens of the commonwealth, etc.
It was clearly and conclusively shown that pursuant to the provisions of an act passed September 11, 1787, 2 Sm. L. 414, Federal lane was laid out and established by the commonwealth as a public highway of the uniform width of eighty feet. Evidence was also introduced tending to prove that the buildings and fence complained of were constructed and have •been maintained by the defendants in, upon, and across said highway, as charged in the indictment.
In view of the evidence, the court was requested by the district attorney to charge as follows :
“1. That Federal lane, as established and laid out by the act of 1787, and the survey of the Reserve Tract opposite Pittsburgh, was a public highway, and, under the evidence, is a public highway to-day.
“ 2. If the jury believe that the defendants occupy or obstruct any part of said Federal lane or alley, as laid out by the state by the act of 1787, and the survey under same, they would be guilty as indicted.
“ 8. In the case of a street laid out by the state, it is not necessary that the same be used or accepted by the public before a person may be guilty of a nuisance who may obstruct the same.”
The first point was rightly affirmed, but the second and third were refused, and that is the subject of complaint in the first and second specifications, respectively. The learned judge’s reason for refusing these points is disclosed in the portions of his general charge which constitute the third and fourth specifications, in which he mates the guilt of the defendants to depend solely upon whether the commonwealth had succeeded in proving to the satisfaction of the jury that the portion of the highway occupied by the building and fence has been or is used by the public. That question was submitted to the jury thus: “If you find there is no travel there,.that the road is never used in any way, either by foot-passengers or otherwise, I instruct you that the defendants would not be *61guilty of the offence charged in the indictment;.....but if you find there is any evidence that it was used by persons as a road, or any part of it, the defendants would be guilty.”
In refusing to instruct the jury as complained of in the first and second specifications, and in charging as set forth in the third and fourth specifications, we think the commonwealth has just reason to complain. According to the undisputed evidence, as he correctly instructed the jury, Federal lane, as established by the commonwealth herself, was and is to-day a public highway, over and along which every citizen of the state has an undoubted right to a free and unobstructed passage, on foot or otherwise; and any structure that interferes with the full, free, and uninterrupted exercise of that right is a public nuisance. The only question of fact for the jury is that referred to in the first specification of error, viz., whether the defendants, by the building and fence described in the indictment, occupied or obstructed any part of Federal lane as established and laid out by the commonwealth, and as to that the weight of the evidence appears to be decidedly against the defendants.
From the time that Federal lane was established as a public highway, more than a century ago, every citizen of the commonwealth had, and still has, a right to lawfully use it, and every part of it, either on foot or otherwise. It required no act of acceptance on the part of any one to make it a public highway. It became such by the act of sovereign power by which it was established. Neither its character as a public highway, nor the right of the public at all times to use it as such, could be lost by non-user: Wood on Nuisances, § 308. At common law, any act or obstruction which unnecessarily incommodes the lawful use of a highway by the public is a nuisance. Thus, it is a nuisance at common law to dig a ditch or make a hedge, or erect a gate or fence, across it, or a building on it: Ang. & D. on Highways, § 223; Kelly v. Commonwealth 11 S. & R. 345; Commonwealth v. Railroad Co., 27 Pa. 339; Wood on Nuisances, §§ 250, 260. It is there said that “ eveiy actual encroachment upon a highway, by the erection of a fence or building thereon, or any other permanent or habitual obstruction thereof, may fairly be said to be a nuisance, eve though it does not operate as an actual obstruction of public travel. It is an encroachment upon a public right, and as f is clearly a purpresture and a nuisance. ”
*62The specifications of error are each sustained.
Judgment reversed, and a venire facias de novo awarded.