
    The State vs. E. F. Graham.
    Nuisance— Obstructing Landing.
    
    Indictment for obstructing a public landing is not sustained by proof that a public road leading to the landing was obstructed by the defendant at a place within one hundred yards of the landing.
    BEFORE JOS. T. WALSH, ESQ., DISTRICT JUDGE, IIORRT JULY, 1867.
    This was an indictment for obstructing a public landing on Kingston Lake. The proof was that a neighborhood road leading to the landing was obstructed by the defendant at a place about one hundred yards from the landing.
    The presiding Judge charged the jury that an obstruction of the road within one hundred yards of the landing was an obstruction of the landing. Verdict guilty.
    The’ defendant appealed, and now moved in arrest of judgment or for a new trial, on the ground of error in the charge of the presiding Judge.
    
      Sellers, for appellant.
   The opinion of the Court was delivered by

Wardlaw, A. J.

The indictment was for obstructing a public landing. A landing is either the bank or wharf, to or from which persons or things may go from or to some vessel in the contiguous water; or it is the yard or open place which is used for deposit and convenient communication between the land and water. A public road to it is essential to make it public, unless where it may be used only in connection with transportation by water. But the road to it is like the road to a ferry; essential to its use, but not part of it. In this case the District Judge held that an obstruction of the road within one hundred yards of the landing was an obstruction of the landing; but if the road at the place of obstruction was not widened so as to become part of the landing, (and we understand it was not in this case,) it is difficult to perceive how one hundred yards differs from a mile, if an obstruction at either distance would prevent access to the landing. -

The departure of the proof from the allegation is no ground for arresting judgment on a good .indictment, but serves in support of a motion for new trial, especially when accompanied by misdirection on the subject.

The motion for new trial is granted.

Dunkin', 0. J., and Lnglis, A. J., concurred.

Motion granted.  