On Petition for a Rehearing.
Elliott, J.— Theimportance of the questions involved, and the earnestness and ability with which the petition for a rehearing has been argued, have induced us to again carefully consider the questions which this case presents.
We are satisfied that the conclusions reached and announced in the original opinion are correct. Public highways belong, from side to side and end to end, to the public. If acquired under the right of eminent domain, the public *194money paid for them. If acquired by dedication, the donor gave them to the public for public purposes. The right to seize lands, under the right of eminent domain, extends, only to cases where the highway is for the public use. Blackman v. Halves, 72 Ind. 515. There is no such thing as a rightful private permanent use of public highways. If one person can permanently use the highway for his private business purposes, so may all. Once the right is granted, there can be no distinction made, no line drawn; all persons may build their shops, exhibit and sell their wares, within the boundaries of the public highway. There is no right in any person to permanently appropriate to private use any part of a public street or alley. The person who so uses a public highway commits an indictable public nuisance. An English author of deservedly high repute illustrates the doctrine we are endeavoring to enforce, thus : “In the case of an ordinary highway running between fences, the right of way or passage is prima facie, and unless there be evidence to the contrary, extends to the whole space between the fences, and the public are entitled to the use of the whole of it as the highway, and are not confined to the part which may bo metalled or kept in order for the more convenient use of carriages and passeng'ers. It is an indictable offence, therefore, to place posts on greensward and open places extending between the metalled part of the road and the fence, dividing the road from the adjoining land, although the posts do not in point of fact offer any injurious obstruction to the public traffic. It is enough that they stand in the way of those who may wish to traverse the whole space between the fences.” 1 Addison Torts, p. 328, sec. 313.
In Commonwealth v. Wentworth, 1 Brightly N. P. 318, the facts were precisely similar to those stated in the instructions asked by the State in the case in hand, and the court, as matter of law, declared the act of placing a fruit-stand upon the sidewalk of a city to be a public nuisance.
*195The accurate and learned editor of the Albany Law Journal declares that “There is nothing novel in the doctrine that the citizens have a right to a clear sidewalk,” and that fruit-stands, even when placed thereon by authority of the municipal legislatures, are nuisances.
We deem it unnecessary to add other citations to those made in the original opinion, although many more might be added.
There was no usurpation of the functions of the jury in the instruction asked by the State. Matters of fact are always to be decided by the jury, but, when the facts are entirely undisputed, it is the duty of the court to state to the jury the law upon the facts. This is true in criminal prosecutions as well as civil actions. The statute makes it the imperative duty of the court to instruct the jury upon all matters of law in criminal prosecutions, and if, in giving-instructions, an error is committed, the case will be reversed. It is none the less the duty of the court to instruct the jury upon the law, because the jury are the ultimate and exclusive judges of both the law and the facts. The jury are not, according to the settled rule of this State, bound to obey the instructions given them, but the court is nevertheless bound to inform them upon all matters of law. In this case, the facts hypothetically stated in the instruction were all that were required to constitute a public nuisance. Not a single material fact was wanting, and it was proper to state the rule of law applicable to such facts. Courts are not to state mere abstract propositions of law, but to state rules applying to the particular cáse on trial. In this case the right of the public, the invasion of that right by the wrongful act of the appellee, and the injury to the public, all appeared in the hypothetical statement made by the court, and nothing remained but to do as the State asked the court to do — declare the rule of law applicable to such a state of facts.
*196Appellee refers us to the case of The State v. Johnson, 69 Ind. 85, where it was held that an indictment attempting-to charge the offence of living together in open and notorious fornication was bad because it did not aver that the living-together in fornication was open and notorious. The doctrine of that case we heartily approve, but fail to see that it has the slightest application to the case we have in hand. We are also referred to the case of The State v. Houck, ante, p. 37. It was there held that an information which charged that a slaughter-house that was so maintained as to emit offensive and noisome stenches and smells around it for the distance of one-fourth of a mile, was bad for the reason that it did not aver that there were persons living within that distance. It was there said: ‘ ‘Nor does it appear, by the affidavit, that any one resided within the limits of the quarter of a mile, to which extent the air was contaminated. * * * * In short, no facts are stated to show that any part of the citizens of the State were injured. The general conclusion, ‘to the great injury, annoyance and common nuisance of all the citizens of the State,’ etc., does not supply the defect in the main body of the allegation. ’ ’ That case, so far from being in appellee’s favor, is against him, for it decides that the facts, and not-the mere conclusions, are to control. In the case in hand, all the material facts appear, and the court was asked to declare the law upon these undisputed facts.
The only other case to which counsel refer is the overruled case of Hackney v. The State, 8 Ind. 494. All we need say of that case is, that the doctrine which it declared has been completely exploded. Wall v. The State, 23 Ind. 150; Burk v. The State, 27 Ind. 430 ; The Ohio, etc., R. W. Co. v. Simon, 40 Ind. 278 ; Pettis v. Johnson, 56 Ind. 139 ; Hood v. The State, 56 Ind. 263 ; Haag v. The Board, etc., 60 Ind. 511. Many of these cases, and more that might be cited, hold that, under our statute, a nuisance is substantially the same as at common law. The law upon *197this subject is well stated by Erazer, J., in Burk v. The State, supra. It was there said: “There is no difficulty in understanding the section of the statute upon which' this .prosecution was founded. The phrase ‘public nuisance’ had :a very definite meaning in the law long before the statute was enacted. To annex a definition of each word employed in the section was certainly never within the' purpose of the Legislature. Such absurdity is not to be imputed to the law■maldng power. Was it then intended that in creating a •crime, words having a comprehensive and exact legal meaning, embracing much in brief, must not be employed; that ■.the virtue of such legislation should- depend upon the vastness of its circumlocution? It is hardly conceivable that .anything more was intended than that there should be no criminal prosecution in this State for any act, unless the Legislature had first declared it a crime, in intelligible terms, .and fixed the punishment therefor. In that sense, the enactment against public nuisances is consistent with it. It •defines — i. e. marks out, with distinctness, a public nuisance as a crime.”
Much is said by counsel about the necessity of supplementing the facts stated in the instruction by evidence that some injury was done to some particular citizen or citizens. It is evident that counsel lose sight entirely of the pi-inciple which governs this case. Although at the expense ■of some repetition, we restate this principle. The public were entitled to the free use of every part of the sidewalk, ■and the erection of a permanent structure thereon was an invasion of this right, constituting a legal injury affecting not only some, but all, of the citizens of the State. The .act is itself a wrong, and in and of itself a wrong to all the citizens of the commonwealth. There is no need to call this or that citizen and ask him whether he has suffered any annoyance. This would be impracticable as well as needless, because the act itself affects all who have a right to travel *198the highway, and that right belongs to everybody in the State. It is impossible to invade it without affecting the interests of all.
We are told that numerous encroachments have been made upon public sidewalks by stairways, basement railings and the like, under the belief that such encroachments are not nuisances per se. We can not say what belief persons may-act upon in appropriating public property, but we can say that there can be no reasonable foundation for a belief that one may seize upon the property of another and appropriate it to his own use, even though that other be the jmblic. There is not the semblance of a ground upon which to found, such a belief. Men certainly know that they do not own an inch of the public way, and know, too, that the way belongs-to the public, and is free and common as a way to every citizen of the land. Surely, no man can justly claim that he-can seize the public sidewalks of a large city, and build thereon permanent structures for private use. But more than this, he who does seize a part of the public highway for private purposes knows — not merely as matter of law, and that is conclusive knowledge, but as matter of fact— that he is invading the rights of all the citizens of the State ; for all have a right to the free use of every part of the highway.
Petition overruled.