This was an indictment against the plaintiff in error for obstructing a public highway. The indictment contained three counts; one for changing a public road, the other, for erecting a fence across the public road. The defendant pleaded not guilty, and the statute of limitations.
On the trial of the cause, it was proved that the alteration of the course of the public road, described in the indictment, and the obstruction thereof, charged in said indictment, were made and erected before the passage of the act to amend and consolidate the laws on the subject of the public roads, approved December 3d, *3761836, and also had been, twelve months prior to the finding of this indictment; and that the alteration, change and obstruction, continued to remain on said public road, until the finding of this indictment: whereupon, the counsel for the defendant, requested the court to instruct the jury — that on both, or cither of these grounds, the defendant was entitled to an acquittal under this indictment; that the law in force, when the alteration, change and obstruction, were made and erected on said public road, had been repealed by the subsequent act of December 1CSG — also, that the offences charged, if any had been committed, were barred by the statute of limitations. Those instructions, the court refused to give, and charged tiro jury, that as it appeared in evidence, that the alteration, change and obstruction above referred to, continued to esist up to the finding of the indict men i, the defendant was subject to cor.victien for said a»nti.unation, chango and obstruction, notwithstanding it had been made and erected before the passing of the act last recited; and had been, more than twelve months before the finding of the indictment.
The jury 'found a verdict against the defendant; and by the direction of fnc court, the questions of law arising out of the evidence and charge of the court, are reserved for the revision of this court, as novel and difficult, and now assigned for error-.
It is admitted by the attorney general, that the first count for changing the road, cannot be sustained. The only remaining question, is, whether an indictment can be sustained under the act of December 1836 — for an obstruction of a public road by running a fence across it, previous to the passage of that law, and more than a year before the finding of the indictment.
It is a well settled principle, ana has been so decided by this court, that no recovery can be had on a penal statute after its repeal* And the act of December 1836, *377•contains a clause repealing all acts in conflict with it There can ho no doubt that is the cace here; and the attorney general has very properly conceded, that if this indictment can be sustained, it must be on the act above mentioned, of 1836. The section which controls this case, is in these words: “If any person shall alter or ■chango a public road, unless by order of-the Commissioners court, founded on the report of a jury, appointed and sworn as in the case of laying out new roads, nr unless it bo done to straighten said road through enclosures, or to render it more convenient to the public; or if any person shall erect, or cause to be erected across any public road, a fence, bar, or other impediment, or fell a t oo or brush, or other obstacle on or across the same, and shall not remove it within twenty-four hours thereafter, he shall be liable to indictment, and on being found guilty, shall be fined in any sum the jury trying the offence may assess.*"
The indictment is founded on this-statute, and is not for the continuation of a nuisance at common law. If by this statute, it is the erection of, or casting an obstruction across, the public road, which is the offence made indictable by tire act, then the charge of the court upon the evidence cannot be sustained, and we think the statute can admit of no other construction. We do not however assent to the proposition contended for, that the act of the legislature legitimated all nuisances of this character, existing at its passage. The doctrine of the common law is, that no length of time legitimates a nuisance—Weld vs. Hornby;† Mills vs. Hall.‡
The act manifestly contemplates," that before anyone can beco ne obnoxious to its provisions, he must act, and not remain merely passive, by suffering the obstruction to remain, after the passage of the act, which he had erectecfebefore its passage. If instead of merely suffering the obstruction to remain, the proof had been, that *378after the passage of the last act, and within twelve months before the finding of the indictment, the plaintiff had, by himself,' or his agent, done any act, shewing an intention to preserve the nuisance, such for example, in this ease, by making up the fence, or laying on rails, or other material to raise or preserve the fence; such act would subject the offender to the penalties of the law we are commenting on.
We are confirmed in this opinion by the established forms, of indictments at common law, for continuing .a nuisance; they allege not the creation of, but the continuance, of the nuisance.*
The judgment must be reversed, and the cause remanded for further proceedings, not inconsistent with this opinion.
1 Stewart, 347.
pp. 12, s. 5, acts 1833.
7 East, 199.
9 Wend. 315.
See Archbold’s Cr; PL 478, and authorities there referred to.