Lancaster Turnpike Co. v. Rogers , 2 Pa. 114 ( 1845 )

Burnside, J.

— The act of the 9th of April, 1792,3 Smith’s Laws, 83, authorized the incorporation of a company for making an artificial road from the city of Philadelphia to the borough of Lancaster. The company had power to erect gates, and appoint collectors on the road. All our subsequent turnpike acts are substantially copied from the act of the 9th April, 1792, relating to the Lancaster turnpike. The case of the Ridge Turnpike v. Stoever settles the right of turnpike companies generally to erect toll-houses at their gates, for the accommodation of their toll gatherers. 2 Watts & Serg. 548. This right is indispensable to the enjoyment of the grant, but companies have no right to erect toll-houses outside of the limits of the road, without the consent of the owners of the land. [His honour here stated the material facts of the case.] The company had no right under their charter to have a building, part on the road and part on the land of the defendant, except for a toll-house. When the company ceased to occupy the building as a toll-house, the defendant had a right to revoke her license. When the building on the road ceased to be there for a lawful purpose, it was a public nuisance. Whatever worketh hurt, inconvenience, or damage, is a nuisance. 3 Black. Com. 215; 2 Green-leaf’s Evid. 465. A common nuisance is an offence against the public, either by doing a thing which tends to the annoyance of all the king’s subjects, or by neglecting to do a thing which the common good requires. 2 Roll. Ab. 83; Hawk. P. C. ch. 75; 5 Wils. Bacon, 146. It is agreed to be a nuisance to dig a ditch, or make a hedge over-thwart a highway, or to erect a new gate, or to lay logs or timber in it; or generally to do any other act which renders it less commodious. 5 Wils. Bacon, 150, tit. Highway, E.

Hawkins says, book 1, ch. 75, sect. 12, it is laid down that any one may pull down, or otherwise destroy, a common nuisance, as a gate, or even a new house erected in the highway. So, if one whose estate is or may be prejudiced by a private nuisance actually erected, as a house hanging over his ground, or stopping his lights, may justify the entering into another’s ground, and pulling down and destroying such a nuisance, whether it were erected before or since he came to the estate ; surely, it cannot but follow, á fortiori, that any one may lawfully destroy a common nuisance. 5 Bac. Abr. tit. Jñdsance, C. 152; Hawk. P. C. ch. 75, sect. 12, &c.

It was held in Lowry v. Arnold, Comberbach, 417, that an action of trespass does not He for pulling down a house which is a nuisance in a highway. The gist of the action of trespass is the injury to the plaintiff’s possession, and that possession must be either actual or constructive. Here the company, when they ceased to occupy the building as a toll-house, the license of Mrs. Rogers being revoked, had neither.

The judgment is affirmed.