Worcester daily spy. [volume] (Worcester [Mass.]) 1850-1888, 1859-04-27
THE ABATEMENT OF NUlsANCEs- RULING
OF CHIEF JUSTICE SHAW REVERSED.


In the case of James Brown VS.. Stephen
Perkins and wife, all of Rockport, in which
the defendants were charged with entering the
shop of the plaintiff and destroying a quantity
of liquors, it will be remembered that Chief
Justice Shaw ruled that all persons had the
right to abate common nuisance, and there
fore verdict was given for the defendants.
The plaintiff appealed, and at the session of
the Supreme Court at Salem, Tuesday morn
ing, Judge Bigelow read the following decision
of the full bench, which reverses the ruling
given by the Chief Justice last year;
SUPREME JUDICIAL CoURT.-JameS BrOun
Us. Stephen Perkins and wje.-This was an ac-
ton for breaking and entering plaintiffs shop
and destroying various articles of property.
The defendants denying the fact, putting the
plaintiff to proof, insist that it is proved that
they were chargeable with breaking and enter
ing, it was justifable by law, on the ground
that the shop was a place used for the sale Of
spirituous liquors. and so was declared to be a
nuisance; that they had right to abate the
nuisance, and for that purpose to break and
enter the shop, as the evidence above shows
that it was done.
ID. That the shop contained spirituous IL
quors kept for sale; that the so keeping them
was nuisance by statute; that they had a
right to enter by force and destroy them that
they entered for that purpose and destroyed
such articles, and did no more damage than
was necessary for that purpose.
A great many points were raised on the re-
port, on which the Court have not passed.
They are all passed over now for the pur-
pose of coming to the main points which are
decisive of the case The Judge who sat at
the time stated that he ruled the law, and di-
rected the Jury, as stated in the report, subject
to the opinion of the whole Court and when
many other points were raised, he stated that
it might be more convenient to report the whole
case, so far as controverted points were pre-
scented for the consideration of the whole Court
and this, it was understood, was assented to by
the counsel Passing over all questions as to
the plaintiffs case, and coming to the iustifica-
ton set forth in the answer.
l. The Court are of opinion that the instruc-
tions the Jury were not correct in matters of
law.
The Court are of opinion that spurious
liquors are not of themselves a common nui-
sance, but the act Of keeping them for sale by
strtute creates them nuisance, and the only
mode in which they can be lawfully DESTROYED
is the one prescribed by law-by warrant
bringing them before magistrate, and giving
the owner of the property an opportunity to
defend his right to it. Therefore, it is not
lawful for any person to destroy them by any
abatement OF common nuisance, consequent
ly, not to use force for that purpose.
2. That it is not lawful by the common law
for any and all persons to abate common nui-
sance, merely because it is common nuisance,
though it may have been sometimes stated in
terms so general as to give countenance to this
superstition, that this right and power is never
entrusted to individuals in general without
process law, by way of indicating the public
right, but solely for the relief of a party whose
right is Instructed by such nuisance
3. If such were intended to be made the
law by force of the statute, it would be contra
ry to the provisions of the constitution which
direct that no mans property can be taken
from him without compensation, except by the
Judgment of his peers on the law of the land
and no person can be twice punished for the
same offence. And it is clear that under the
statute spurious liquors are property and en-
titled to protection as such. The power of
abatement of a public or common nuisance
does not place the penal law of the Common
wealth in private hands.
f. The true theory of abatement of nuis-
ance is, that an individual citiz9n may abate a
private nuisance injurious to him, when he
could also bring an action and also when a
common nuisance obstructs his individual
right, he may remove it to enable him to en-
Joy that right, and he cannot be called in ques-
ton for so doing. AS in case of the obstruc-
ton across highway, and an unauthorized
bridge across a navigable water, which he was
accustomed to use, he may remove it. by way
of abatement But this would not justify
strangers being inhabitants of other parts of
the Commonwealth, having no such occasion
10 use it, to do the same.
Some of the earlier cases, in LAYING down
the general proposition that private subjects
may abate common nuisance, did not per-
haps remark this distinction; but we think
upon the authority of modern laws, where the
distinctions are here accurately made and upon
principle, this is the true rule of law.
5. That as it is the use of a building, or the
keeping spirituous liquors in it. which in gem
eral constitutes the nuisance, the abatement
consists in putting a stop to such use.
6. That the keeping of a building for the
sale of intoxicating liquors, if nuisance at
all, is exclusively common nuisance and the
fact that the husbands, wives, and children, of
any persons do frequent such place and get
intoxicating liquors there, does not make it a
special nuisance or injury to their private
rights so as to authorize and justify such per-
son in breaking the shop where it is thus sold
and destroying the liquor therein found and
the vessels in which it may be kept But it
can only be prevented as a common or public
nuisance in the mode prescribed by law.
On these grounds, without regard to others,
which may be hereafter considered, the Court
are of opinion that the verdict for defendant
must be set aside and new trial ordered
Judge Bigeow intmated that, as the act al
legged was not denied, and as the justification
set up had now failed, perhaps a new trial
,rculd bo rI'hio G..
for the counsel to determine Otis P. Lord
for naintiffs A Attorney General fnr. dnfnndnnt