State v. Town of Northumberland

Bellows, J. In indictments for not repairing highways and for nuisances therein, it has been held not to be necessary to set out the termini. Commonwealth v. Hall, 15 Mass. 240; Commonwealth v. Newbury, 2 Pick. 51; State v. Godfrey & al., 3 Fairfield Rep. 369; Angell on Highways, secs. 276, 277; 2 Chitty’s Cr. Law 338 and cases. But if they are set out, they must be proved as laid, and any material variance is fatal. 2 Chitty’s Cr. Law 338 and cases; Roscoe’s Cr. Evi. 565-6, and cases cited; Angell on Highways, sec. 276; Fisher's Case, 8 C. & P. 612; Regina v. Botfield, 1 C. & M. 88; Wright v. Rattray, 1 East. Rep. 376 ; this was an action on the case for obstructing plaintiff in the use of a Avay from his close through the close of the defendant into the A’illage of Allesley. It appeared in evidence that a private way had once existed by prescription between the places mentioned, but that the plaintiff’s grantor Avho then owned the defendant’s close conveyed it Aviihout reserving the way, and thus extinguished it over that close, so that the Avay norv extended only to defendant’s close, and not to the village of Allesley, which adjoined the defendant’s close. The court held that, on a case reseiwed, the variance was fatal, because the Avay did not extend unto the village of Allesley. This case well illustrates the general principle and is precisely in point. In the case before us the indictment alleges that the highway extended to the dwelling house of Edward Bucknam, but the proof does not sustain the allegation; and although the Avant of repairs shoAvn, is in a part of the highway which is proved to exist, yet the identity of the Avay described is not established. The objection here is purely technical and the court regret to be obliged to dispose of the case upon such a ground; and yet a\-c are unable to distinguish it from the numerous cases referred to, and Avhich, as we think, accord AA’ith the Avell established rules of pleading, that descriptive averments must be proved as laid, unless they are impertinent and immaterial and would be struck out on motion. In such cases they may be regarded as surplusage, and need not be proved, but if they enter into the description of the offence, or of the claim set up, they must be proved as laid. As if in pleading, a party allege himself to be seized in fee of land; proof that he has an estate of freehold less than a fee, is not enough, although it might have been, had he so alleged it. 1 Ch. Pl. 228, 385, 547. Of the same character is the leading case of [159] Bristow v. Wright, Doug. 665, and notes to that case; 1 Smith Lead. Cases 324, 328, 332 and 333; and also State v. Copp, 15 N. H. 212; State v. Bailey, 31 N. H. 526; State v. Noble, 15 Maine 476, where the same doctrine was applied to an indictment for stealing a pine log marked H. x W., and the proof was of a log marked W. x H. x with a girdle cut around it. See also 3 Starkie Evi. 1542 & seq. and cases cited. Without trenching, then, upon the solidity of a rule which is not only well established but which upon the whole is essential to the protection of persons charged with offences, this part of the description of the highway cannot be rejected as surplusage. Even if it be true that it is* unnecessary to set out the termini, and this may need some qualification, it is quite well established that if they are set out they must be proved, in order to establish the identity of the way alleged to be affected by the nuisance. If the highway be described by the termini, or otherwise, the respondent can rightfully be required to answer to the charge of causing a nuisance in that alone, and the description therefore becomes material and must be proved. It is urged in this case that the termini are proved as laid, inasmuch as a legal highway is shown to exist from one terminus to the other, with the exception of a short distance at a point between the place of the alleged nuisance and the northerly terminus, and where there is in fact a way, although not legally established, or, in other words, that the place where the nuisance is alleged to exist is shown in the indictment with substantial accuracy. If the indictment had alleged that the highway extended from the southerly terminus across the river and towards the house of Edward Bucknam, it might have been sufficient, as suggested in Wright v. Rattray, before cited; but as both termini have been set out, the rules of pleading require that they should be proved. It is true that in this case it would readily be inferred, without proof of any highway on the northerly side of the river, that the nuisance complained of was the not building a bridge in the highway leading from the southerly terminus towards the house of Mr. Bucknam, and it may also be said that the town could be at no loss to determine the place of the alleged nuisance. Still this is not sufficient, unless it can be shown that it is enough in all cases to prove so much of the highway described as will prove its existence at the place of the nuisance alone,— a proposition which finds no countenance from any adjudged case that we can find. In indictments against towns for not repairing highways, it is essential that it be alleged that the highway is within its limits ; and if not strictly necessary to describe it by bounds it is at least a convenient practice, and any relaxation of the rules requiring the termini when stated to be proved, so far as to hold it sufficient to prove a highway at the place of the nuisance alone, would be likely to lead to a looseness [160] of practice that would not only destroy the rule itself, but tend greatly to mislead the towns or persons charged -with such offences. Upon these views there must be A new trial.