Commonwealth v. Van Sickle

— The establishment, which is the subject of this indictment, is alleged by the commonwealth to be *73injurious to comfort and health. The defendant denies the truth of both these allegations. I need not press upon you at the outset the great importance of the issue to the city of Philadelphia, no part of which, either by the terms of its charter, or the necessities of its citizens, can be dedicated to the purposes of a nuisance. No man, or body of men has a right to occupy a portion of it, and declare that that shall be a Golgotha. Persons owning property in city lots are entitled by right to healthy air, and to a use of the .public highways unimpaired by any adjacent nuisance. If this is a principle of general application to all cities, it is of peculiar moment to this, where the climate, during the summer months, is one of intense heat, and where, from the comparative lowness of the ground,- corruption of the atmosphere may produce, as, in former times, it has produced, contagion and disease. It was for the purpose of checking such mischiefs, that the board of health was originally organized, and had that body done its duty in the present case, this trial would never have taken place.

The issue in this case narrows itself to a single point, and that point, if you believe the evidence on both sides, is one of law, on which it is your duty to receive the instructions of the court. Before reaching it, I will dispose of one or two grounds of defence which' have been zealously urged as a bar to the indictment. In the first place, it is said that the defendant has acquired by lapse of time, and by original undisturbed possession of the precinct, a right to maintain the establishment in question against subsequent incomers. Such I deny to be the law. No one has a right to erect a nuisance, and then, after time has passed by, to say that he has a title to it by prescription. You will not understand me as saying that the distillery, stripped of the piggery attached to it, is in itself a nuisance. If, however, the whole concern, as jointly conducted, is such, no length of time can protect it.

Nor is the position, that the business conducted by the *74defendant is necessary to the city, and should therefore be managed in convenient proximity to it, entitled to your consideration. There are some trades so necessarily offensive, that merely carrying them on within the limits of a populous city, is in itself a nuisance. The one which is the subject of this indictment, you will understand to be such. The law is perfectly well settled that a hog pen in a city is a nuisance; in the country, it is not so, though if a man should start a pig-sty opposite to his neighbour’s door, the latter has a remedy; and in a city, which is one close neighbourhood, a fortiori, there must be a remedy also. You will take the law to be, that the keeping of pigs in a community like this, whether there be one or a thousand, is indictable. Nor does the law recognise any distinction between the several points of a city dedicated to public use and comfort. A pig-sty is as justifiable in the centre of a city as in its farthest corner. If the one that is before you is sanctioned, a man will have a perfect right to open another opposite this court house. You are not justified in singling out any section of a city for a purpose like this; if you do, you must open the whole of it to the same object.

It is said, by way of defence, that manufactures in a large community are to be protected, and that this was a manufacture. Without touching the question, whether a manufacture, in the strict sense of the term, if offensive to the comfort of the community, can be removed by indictment, there is no pretence for saying, that' a piggery is a manufactory at all.

The alleged variance between the indictment and the evidence, as to the feed of the hogs is immaterial, and in fact, you may treat the entire averment as to feed, as surplusage.

It is not necessary, as seems to have been supposed by the defence, for the commonwealth to have proved, that the material on which the hogs were fed, was in itself unwholesome and offensive. If the hogs lived, they must *75have eaten, if they ate, they must have digested, if they digested, there must have been excrementation, and if so, there is no necessity for any dispute as to whether there was sufficient cause for complaint in the establishment conducted by the defendant.

Without considering, therefore, whether the discomfort and ill health experienced by the neighbourhood is to be attributed to this alone, or to this in conjunction with other causes, it is my duty to instruct you, that the fact of the nuisance being cognizable by the board of health, does not exclude the common law procedure by indictment, and that if you believe the evidence in the whole case, you must find the defendant guilty, in manner and form, as charged in the indictment.

A verdict of guilty being rendered by the jury, motions in arrest of judgment, and for a new trial, were made by the defence, embracing the principal points urged on the trial, but were ultimately abandoned, and the nuisance abated, without the case being taken to the court in banc.*