Respublica v. Caldwell

SEPTEMBER SESSIONS, 1785. Respublica v. Caldwell. Indictment for nuisance. It is no defense to an indictment for nuisance, in erecting a wharf on the public property, that it would be beneficial to the public. This was an indictment for a nuisance, in erecting a wharf on the public property. • The defendant offered witnesses to prove that the erection of the wharf had been beneficial to the public, and therefore, not to be regarded as a nuisance. But— [MAJORITY — McKean, Chief Justice,] McKean, Chief Justice, delivered the opinion of the court, that the evidence was inadmissible, for two reasons: First, Because it would only amount to matter of opinion, whereas, it is on facts the court must proceed ; and the necessary facts are already in proof. Secondly, Because it would be no justification ; for, on the same principle that the defendant might carry his wharf twelve feet, he could justify extending it farther ; or any other man might excuse a similar intrusion. Suppose, for instance, a street were 60 feet wide, 12 feet might be taken off it, without doing any material injury to the public property, or creating any great obstruction to passengers; yet surely this will not justify any man’s actually buildim» upon, and assuming the property of the twelve feet that could be tl’w spared.