
    [Pittsburg,
    September 28, 1827.]
    COMMONWEALTH against M‘DONALD.
    At the August Term of the Circuit Court for the county of Alolegheny, a case involving facts and principles of much importance the city of Pittburg, and the public was tried. It was an indietment against the defendant for a nuisance, in obstructing one of the principal streets, (Water Street,) by a brick ferry house, a stable. and a stone wharf, situated at and near the west side of Liberty Street. On the trial, it was satisfactorily proved that Wafer Street was laid out from Grant Street, to the junction of the Allegheny and Monongahela rivers, and extending from the north side of said Water Street to the river. It was also proved that it was dedicated to public use, and used by the public as a common highway, from the laying out of the town, until some time between the years 1802 and 1805, and that some time between those years Wa~ ter Street was obstructed by a fence placed across it on the west side of West Street. The persons under whom the defendant claimed, had occupied the lots near which the alleged nuisances were erected, as a landing place from a ferry at the opposite side of the river, for about thiity-five years. But none of the encroachments stated in the indictment were erected anterior to 1806. The ground of the defence will be fully understood from the charge of Judge Duncan, and his opinion on the motion for a new trial."
    Counsel for the commonwealth, Wilkins, deputy attorney general, Craig, and Selden. For defendant, Baldwin and Forward.
    
    CHARGE OE JUDGE DUNCAN TO THE JURY.
    This was an indictment for a nuisance in the city of Pittsburg, containing three counts.
    1. Continuance of a nuisance — by a porch and brick building on Water Street.
    2. Continuance of a nuisance by a frame stable.
    3. Erecting a stone wall.
    We must banish from our minds all consideration of the parties, of inconvenience to the public, if Water Street is not found to extend to the point: and on the other hand of the consequence to the interest of the defendant, if it is so found. We are to decide according to the facts and the law, without regard to the parties or their interest.
    It is said very valuable property depends on the event of this trial: it certainly involves some important principles, novel at least in Pennsylvania; but in the view I take of the subject it depends on one fact for your decision, and is resolvable into a few elemen- . tary principles of law.
    
      The first question is, was this a street laid out as Water Street in the plan of Pittsburg?
    
    Second, did that street extend to and include the locus in quo, the place on which the erections were made?
    Third, was there an encroachment made, and continued on this street by the defendant?
    Fourth, had he any authority to make it, or continue it?
    Fifth, if he had not, does his length of possession protect him from the prosecution?
    Let us first dispose of the question raised, as to the right of the Penns to lay out a street so as to include this ground. It is alleged, that having agreed to sell the point of land at the confluence of the rivers to Craig and Bayard, before the town was laid out, they had no right which they could exercise over it. This is a question properly of law, for the decision of the court.
    The first agreement was only executory, with no plan agreed on, depending on future sales to be made within a year; it was entered into in January, 1784, probably within the contemplation of both parties, that it was to be included in a town about to be laid out.
    The town was laid out. in May following, including this ground in the general plan, and marked as lots 143 and 144, and bounded in the plan by Water Street. When this agreement was executed by the conveyance stipulated for, it is by a reference to this plan, and the conveyance of the lots by the designations of No. 143 and 144, in a plan of George Woods. In that plan the lots are bounded by Penn, by Liberty, and Water Streets, and not by the river as in the conveyance. The conveyance is. by reference to this map or plan, and is of the lots by No. The right of Craig and Bayard, is to be governed by the conveyance, depends on that, and that alone. It is a surrender and revision of the former agreement, fixing the plan, including other ground by lots according to Woods’ survey and the town plat. The receipt on the agreement, states that the payment was for the lots that day sold, with a reference to the division and location by Woods’, and the conveyance given and accepted, is of the lots described in the plan or map of-Woods’. Craig and Baya?'d could not go beyond this, and set up the agreement; the acceptance ratified the act of the Penns, and the division of Woods and the town plat. They bought by the map, they paid according to the map, and it was conveyed according to the map. Of this I have no doubt, nor have I any doubt as to the conveyance to them. My opinion is, that the description in the plan is to govern, as if the boundaries were particularly recited.
    The rule that known monuments referred to must govern, is not inflexible, where a plan is referred to and the description is not complete, without reference to the plan; the descriptions in the plan are the true boundaries. When a grant is of a particular, sufficiently certain by some circumstance belonging to it; the cireum«
    
      
      stance mistaken or false, will not frustrate the grant, when particulars are before sufficiently ascertained. 7 Johns. 257. 10 Johns. 85. 17 Mass. 207. Now Woods’ map is entirely certain, it requires nothing to fix it. The Monongahela river is a mistaken circumstance in the conveyance.' No. 143 and 144, do not join the river, but are bounded by Water Street. If the map is not the description, is not the standard of the boundaries, then the grant is void for uncertainty; it is without dimensions and without form. It is the map that gives it a habitation and a name. The conveyance only gave Bayard and Craig, a right to the lots mentioned in the plan, to Water Street. That is one of the boundaries. It is as if all the boundaries had been expressly recited. The proprietaries had a right to include this in the town plat. Bayard and Craig, by the acceptance of the deed, have ratified the plan, have bought in conformity to' the plan, and are estopped from denying it. The defendant then has no shadow of title under the Penns, and it either was dedicated to public uses or the right remains in the Penns.
    
    What then was the effect, the legal effect of this survey and map of Woods? It was a dedication of the ground to public use; making it a street and public highway. For at the common law, a street built upon a person’s own ground, is a dedication of it as a highway, so far as the public has the use of it, 2 Stra. 1004; and so far is such a dedication respected by our laws, that by our general road law, Purdon, 722, the Court of Quarter Sessions cannot vacate any street, lane, or alley, or highway, within the city of Philadelphia, or within any borough, town plat, town or village in this state, which has been laid out by the late proprietaries, or by any other person or persons, and dedicated to public use; thus making the town plat the evidence of the public highways, and putting it beyond the power of the courts to vacate them, and as I take the law to be, they can only be vacated by act of the legislature, or by some local legislature authorized by the general assembly.
    What then is the evidence? Does it leave the mind in any reasonable doubt as to the location of the street and its extent, co-extensive with the limits of the town? Defendantadmitsthat a street according to the plan was laid out, called Water Street, so far down as West Street. Why it should stop there, I can discern no possible reason, nor has any one been assigned; all was open for the Penns to make it, it interfered with no man’s right. Did they make it? There is just the same evidence of its continuance to the point as of its existence at all.
    A plan is produced, signed by the surveyor, proved to be authentic with indorsement showing it to be the document returned by Mr. Woods to the Penns, which came out of the office, as appears by the indorsement of the agent now deceased. There is another made by Vickroy, who made the survey at the time the work was done, and corresponding with this, and a third one on parchment, proved to be the one by which all sales were regulated. These papers are the best evidence; what other could be had? This map is the charter which regulates the possession and rights of every man in the city. Disregard this, and the city and her possessions are at sea without any chart to direct, any compass to guide.
    Had the family of the Penns continued in the government, this plan, as is the case with the town plats of Sunbury, Reading, York, Easton, and Carlisle, would have been returned to the public office, the office of the surveyor general, and would have been full evidence of the faets against them, and all claims under them, with notice, and all purchasers have notice; for the conveyances refer to this map. But it is corroborated by the only living witness of the fact, by Mr. Vickroy, who made the survey, and by the only surviving resident, that Water Street was continued along the river from Grant Street to the point. You will judge; was the fact so? that Woods laid out a street, Water Street, and did it extend to the point? These are suggestions for your consideration. I ask again, what other evidence can be adduced in opposition to this? It is urged that this is evidence of all the upper lots, until we come to West Street, described in the conveyances bounded by Water Street, but you will judge whether the weight of this construction is not destroyed by the conveyance to Ormsby, which are bounded by the Monongahela river, and these are far above West Street in the very centre of the plan. Can it be supposed that this was done by design, and that the Penns conveyed to him what they would not have done to others, to the water, because he was a special favourite? This supposition is not reconcilable with the state of the property. They could not after fixing a street, run in upon it to serve any one; and it is unnatural to imagine, it is improbable, that they could have intended to make these two chasms in the street. This perhaps rather goes to show that the scrivener used the term Monongahela, and Water Street as the same thing, but Ormsby bought likewise by number, and if he does not resort to his numbers he has no right.
    It is further urged, that there is a street marked in the plan along the river Allegheny. Though no such street in fact exists. There is some misapprehension. There is no street; there is a small space very narrow left, but for what purpose it was left the map does not state, and the evidence is, it is not left as a street, eertainly is not returned (which is the best evidence) in the map as a street.
    It is again urged, and evidence has been given to show that the lot-holders exercised acts of ownership down to the Monongahela, and the rights of ferriage on these lots; but these acts of usurpation of the public rights, would not deprive the public of them, nor vest the right in the lot-holders. The erection of builclings, and enclosing the ground was a positive act of ownership; but whether these encroachments on the street, if you find it a street, justify the defendant or protect him from this prosecution, is another question which I will presently consider.
    But some evidence is given that the bank was used as a public thoroughfare, and the. town claimed in 1802, by the street regulators as a water street and public ground, as appears from Mr. Darragh’s evidence. In 1804, in the act supplemental to the act incorporating the borough, the legislature recognize this right. I do not say, that if the defendant had a right to the ground as a vested estate, that the legislature could divest it, but it isa legislative construction entitled to respect, and was a notice which all purchasers were bound to take. But all had notice. The conveyances gave the notice, and the original deed from the Penns, and all the derivative titles, recognize this map. Of the constitutional po'wer of the legislature to regulate the public ground, I cannot doubt. There can be no prescription; it would be prescription run mad, to prescribe a vacating act when the last act on the subject recognizes the street.
    In an action for a nuisance, the time by analogy to the statute of limitation would form a bar, but on an indictment for this encroachment the statute does not run, no length of time protects. This doctrine in first and second Chitty, 132, and 10 Mass., is not new doctrine, that coloured possession of public rights does not destroy it, the right must be put an end to by some valid authority; some legislative act or borough ordinance, authorized by law. That is not pretended, any one may pull down and destroy a common nuisance, as a new gate, or even a new house erected in a highway: by a new house is meant one within memory. Here is all within memory, the dedication of the road when there was no obstructing house; but when a building has continued time out of mind, it is contended that it was at first set up by consent, or a composition with the owner of the land, or the laying out the road. 1 Hawks. 694. But the positive evidence is to the contrary of all this. There was no composition with the Penns, there could be no agreement at the laying out of the road.
    The distinction between public rights and private ones is quite natural. Every man must look to his rights; but in the case of public rights, when no individual has a prior right or interest, distinct from his fellows, where he can bring no action for public nuisance, acquiescence, silence goes for nothing. No man wishes in such a case to single out himself, and to be the actor against his neighbour. What is every one’s concern, is no one’s concern, and therefore it is that length of time is no answer to a public prosecution for a public injury, as it wisely is to a civil action for a civil right. The right to dedicate, to lay out this public highway, was in the Penns. They did it, Craig and Bayard are estopped from denying it, have ratified and hold the title by virtue of that very map and description. It is an essential indispensable part of their right. Without it nothing was granted to them.
    If the jury find a street laid out including the place, the defendant is guilty; the continuance of a nuisance is the erection of a new nuisance. Defendant had notice-p-his conveyance, the conveyance under which he claimed gave him notice sufficient to put him upon inquiry, and he cannot pretend ignorance of that very particular, which is the essence of his own title. The boundaries and extent of the street are well ascertained; its length from Grant Street along the river Monongahela, to the confluence of that river with the Allegheny and Ohio, its breadth all the space between the line of the lots on Woods’ map to the Monongahela. There is one case decided in Pennsylvania, which has a strong bearing upon the general principles I have advanced. It is the Lessee of Black v. Heppard and others, in 2 Yeates, 331, tried at Nisi Prius, before Justices Yeates and Smith. There a street had been laid out, called Water Street, by the owners, on the bank of the West Branch, in a town called Lewisburgh, but now known as Derrstown, who conveyed lot No. 341, bounding it eastward by Water Street, together with the fre'e use and privilege of a landing place on the bank of the river, opposite to and of the breadth of the lot No. 341, with the ways, waters, water courses, &c. The ejectment was brought for the intermediate ground between the eastern boundary of lot No. 341, and the low water mark of the river Susquehanna, or part thereof. A stone dwelling house had been erected, but the landing in the river was not enclosed or obstructed. It was then field an ejectment did not lie by the owner of 341. He had no right to the soil of the intermediate ground, and the court then decided it on that principle, and every owner of a lot in the town might then have their action for this invasion of the right of landing, as well as. tiie owner of the lot, which would be absurd.
    The counsel, in the case, admitted that he could not enclose the intermediate ground opposite the lot, but contended that the building injured the passage from the lot tó the landing place; and this right of passage, was all that the plaintiff contended for; but the court decided that as he had no right to the possession, as he could not enclose it, his remedy was by an action on the case, in the nature of assize. This case clearly proves, that the riparian owner, (as he has been called,) has no right but the right of passage; which he cannot enclose. Now, the conveyance in that ease was equally strong in favour of the grantee, as in this case; nay, stronger, for it conveyed the water and passage in express terms. This was a decision at Nisi Prius only, but before two judges of great experience. The point was resumed, but abandoned by the plaintiff. That case, I know, was warmly contested. I was of the counsel in it; and the attorney general attended from Philadelphia to argue it for the plaintiff.
    The admission of She evidence objected to, as well as the competency of all the witnesses who held lots in Pittsburg, which Í admitted, and reserved the point for further consideration; as likewise the deposition of John Findley, rejected. I likewise reserved (he points of law stated in the charge, and adjourned the court to the 13th, to give me an opportunity of consulting the other judges, which could be done without inconvenience, before I proceeded to give a decision on the motion for a new trial, and in arrest of judgment.
   The opinion of the court was delivered by

Duncan, J.

I postponed the decision on a motion for a new trial, to take the opinion of the whole court, in a case in which there could be no appeal under the Circuit Court law; and the defendant’s counsel has been heard in support of the motion, in a very full and able argument. The motion in arrest of judgment has been withdrawn.

This is not to be considered as a precedent for the right of defendants, in criminal prosecutions, to an adjournment before judgment, to have the cause heard on motion for a new trial. Such delay would be mischievous, and retard judgments on indictments. It was a matter, at my own suggestion, and for my own satisfaction, where the question was of general concern. It has relieved my mind from uneasiness, in deciding alone in a case of this magnitude, deeply affecting the public interest, as well as the interest of the defendant; lest I should have fallen into error, to which all men are liable, and none more so than myself: an error from which the party could not be relieved. The judges who have heard the argument, with the exception of Judge Rogers, who dissents in some particulars, which will be hereafter noticed, have assured me that there is no error in the charge, and that they find no cause for granting a new trial.

The great question was one of fact, submitted to the jury, and who have found the fact of dedication, by the owners of the soil, to the public use of the ground by the name of Water Street, the locus in quo, and that the street, called Water Street, from Grant Street, extends along the Monongahelá river to the confluence of that river, with the Allegheny and Ohio, the breadth and all the space, between the lines in Woods’ map and the Monongahela, river.

I am entirely satisfied with the verdict: the evidence was full, satisfactory, and conclusive. It is proper to premise, that this is not a case in which any peculiar right of the city of Pittsburg to the ferriages and tolls is in any way involved; any special or particular rights of the citizens passed on in judgment; but merely the right of the public, to use this ground, as a street, road, and highway. It decides the public right, and that alone: nor is it a case of deviations in buildings, or in the location of streets, from the strict lines of the map, made either by accident or for mutual benefit, or alteration of the plan itself, made for mutual aceommodation, and long acquiesced in by the original owners and the inhabitants. When such a case arises, it will be time enough to decide it. All I will say at present is, that the decision need create no alarm on this score. This is a very different case; for it is a claim of right to obstruct, and an actual obstruction of the whole street. If, then, this is a question of public right, in the event of which, no citizen of Pittsburg, and holding lots here, can derive any immediate interest; then James Ross was a competent witness. In the case of a public nuisance, no one can support a private action, unless for some special grievance or injury — particular damage, as the obstruction laming himself or horse. James Ross had no more interest in the prosecution than any other citizen of the state, of the United States, or of the world, because all had equally the right of passage. This has no resemblance to that to which it has been compared; indictment for forcible entry and detainer, where, though the form is a, criminal prosecution, it is in the nature of a civil remedy, for the restitution speedily of a possession- forcibly taken and detained. The party has there a direct and immediate interest, the restitution of his possession being part of the sentence.

The objection to the charge maybe compressed within a narrow compass. The effect of the agreement of January, 1784, and the receipt of August, 1784, on the conveyance of December, 1784. I do not know that I can make the exposition clearer, by any further illustration, than I have expressed it in the charge; but a more particular detail may be expected.

As early as 1784, when Craig and Bayard entered into a contract with the Penns, it is a natural presumption, that it was in the contemplation of the parties to lay out a town at the confluence of these three great rivers. Nature had pointed it out as a most important station. There was then a town there, though not laid out by any regular plan. The agreement was inchoate, executory, and imperfect; the quantity not precisely ascertained; three acres, more or less; the price to depend on future sales to be made within a year. When the spring opened, the Penns proceeded to lay out a town: employ the agent, Mr. Woods, who, in May, 1784, laid out the town, included these three acres in the town plot, run Water Street through it, and divided the whole into lots — building lots— designated these lots by numbers; in that plot bounded by Water Street, we find lots Nos. 143, 144, and 145. After the town had been laid out, when the plan had been returned to the proprietors, and the purchase money paid, in August, 1784, this first agreement was rescinded, and a new contract entered into: the small piece of ground at the confluence of the rivers, containing three acres, more or less, as described in the agreement of January, then assumes a new shape and form, and the transaction was that day changed into a sale of thirty-two lots in the town of Pittsburg. The said lots are bounded by the rivers Allegheny and Monongahela, Mar-bury, Penn, Liberty, and West Streets; and are numbered in Mr. Woods’ plan of Pittsburg, Nos. 1, 2, to 17, Nos. 132 to 14S, and 260. This was a rescission of the first contract, the substitution of another at a fixed price, the extension of the first, and a sale of lots marked and completely identified by Woods’ map, leaves nothing in doubt, nothing requiring explanation. A re/erence to the map, always ascertained by a glance of the eye, the situation and dimensions of the grant. When the conveyance came to be executed, the contract completed, the description is nearly in the words of the receipt of August:—

“Thirty-two lots or pieces of ground, situated in a point formed by the junction of the two rivers Monongahela and Allegheny, in the town of Pittsburg, marked by the general plan of the said town, made by Col. Woods, Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, Nos. 10, 11, 12, 13, 14, 15, 16, 17, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, and 260; and which said plan is recorded, or intended to be recorded, in the office for recording deeds in Westmoreland county. The said lots, Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, are bounded northwardly by the said Allegheny river, eastwardly by Marbury Street, southwardly by Penn Street, and southwardly by the said Monongahela river. The said lots, Nos. 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, are bounded southwardly by the said river Monongahela, northwardly by Penn Street, eastwardly by Marbury Street, and southwardly by Liberty Street, and the lot of ground No. 145, bounded southwardly by the said Monongahela river, north-westwardly by Liberty Street, northwardly by Front Street, and southwardly by West Street.”

The thirty-two lots conveyed, are the thirty-two lots in the town of Pittsburg, marked in the general plan of the said town by Col. Woods, by Nos. 1, 2, 3, &e. Common sense would say, it is necessary only to cast your eye upon Woods’ map, to find out what was bought, and what was sold, and the plan of Col. Woods is made, in explicit terms, the land mark. The muniment to be referred to was to be recorded in Westmoreland, if it had not already been done. The sale, as strong as words can render any thing, was by the map as certain as if the courses and distances of each number had been particularly set forth in the conveyance. The reference to Woods’ plan, without any thing else, was a certain description: it clearly ascertained the thing granted. 17 Mass. 27. The addition of the Monongahela river was mere surplusage: was the addition of a mistaken or false circumstance, and would not frustrate that which was before certain. The surplusage would be rejected. Jackson v. Clark, 7 Johns. 257. Jackson v. Looney, 85 Johns. 85. 4 Mass. 146. Dyer, 376. Hobart, 170. If it is not rejected, and the map adhered to, what is conveyed? Not the lots 143, 144, and 145, because they adjoin, not the water, but Water Street. They are something very different — different in point of situation, and very different in quantity. The conveyance would be of something more than those numbers in Woods' map, going out of and beyond those boundaries; something which Craig and Bayard had not paid for. The map was to be the standard: it was to be recorded in perpetuam rei memoriam. The conveyances of the Penns were always by the number of the map. The purchaser put his finger on the number he wanted in Woods’ map; and the description, and, I add, the only certain description, by which all the lots in Pittsburg are held, is by a reference to the map, which is the great charter of the rights of all. If Craig and Bayard did not buy the numbers in the map, then they have no rights, as the grant is without quantity or dimensions.

There is but one rule nów in construing conveyances — the intent of the parties. All words give way to the intent. It would be difficult for courts of justice not to construe the reference to numbers in Woods’ map, as explanatory of the intent of the parties; and, if it were necessary, restrictive of the words, Monongahela river. Gascoyne v. Barker, 3 Atk. 9. The map and the numbers are all part of the same sentence. The sentence was not perfect before, and it conveyed nothing-certain, described nothing certain — thirty-two pieces or lots of ground at the confluence of the rivers, bounded by the junction of the river Allegheny and Monongahela. What thirty-two pieces or lots of ground? Why the thirty-two by their numbers in Woods’ map.

It is the map which gives the description, and the map was to be recorded as perpetual evidence of the boundaries of the lots. Nothing more was conveyed than the lots as delineated in the map, and designated by the numbers. This conveyance, therefore, does not include the ground; the defendant can have no right to enclose it as appendant or appurtenant to his grant; and there is, in my opinion, no rational ground to say, that sixty feet was dedicated to the public use, and all from that down to the water was included in the numbers granted to Craig and Bayard.

Nor is there any thing on which to found an argument, that all to the water’s edge was granted to Craig and' Bayard, subject to the right of easement of a public highway, sixty feet in breadth, because the grant is limited to the ground contained in the numbers, as designated in Woods’ plan. The original agreement was extinct, a new one made. It can have no effect in th.e construction of the conveyance, and that was by the plan just before made; the parties could not have had in view to derange, dislocate, or break in on the plan. ■ They profess to contract in conformity to it, and in conformity to the numbers; they adopt that plan, and regulate their conveyance by it. It is impossible to reconcile the boundary of the river, with the grant by the map. The moment you refer to the plan or plat of the tovvn, which is a certain and complete description of itself, requiring nothing extraneous to designate it, the boundary by the river is lost, the map excludes it; that circumstance is a mistake, and this on every rule of construction is to be disregarded as surplusage. Nos. 143,' 144, and 145, convey all •within certain limits; nothing beyond those limits is granted; the locus in quo is not within those limits.

There remains only to be considered the operation of time, as a bar to the prosecution of this public offence. As to the presumption of a grant, from a length of time, this would be a most unwarrantable presumption, a presumption, contrary to all positive evidence in the cause: from whom could this grant be? The Penns could not, because they had dedicated it to public use; the city did not; the state did not! All the conveyances from the Penns have been produced, it is not pretended that any other deed exists: the recitals in all the mesne conveyances prove this. The deed of 1797, from Turnbull, Holkar, and Marmie to Jones, is in these words: “ Do grant, bargain, and sell the two lots, Nos. 143 and 144, marked in the general plan of the said town, made by Col. Woods;” and the sheriff’s deed to the defendant is, “ of all the right, title, and interest of James Jones to parts of lots Nos. 143 and 144, in Woods’ plan of lots in the city of Pittsburg,” and, though it designates the lots as extending to the Monongahela river, yet it is only a sale of lots Nos. 143 and 144; and James Jones’ interest in these lots, so that in every conveyance, in every recital down from the proprietors to the defendant, it is of the lots by their numbers. There is no room for presumption; the defendant does not show or pretend that any thing ever was granted by the Penns, except in the papers he has produced, the very, circumstance of the defendant appearing and showing these papers excludes all presumption of any other grant. Penn’s Lessee v. Kline, 4 Dall. 403. Who was capable of transferring? if any one the Penns; the defendant has shown that they did not: his conveyance proves this, and the technical presumption necessarily assumes that it was practicable to transfer the right by means of a grant or -other conveyance: hence, the presumption does not operate, when such a grant could not from the nature of the case have been made. 2 Stark, on Ev. 1219. Who could convey this street? No one but the legislature. The Court of Quarter Sessions could not vacate it under the general road law. To presume a grant, would be presumption run mad, it would be against the positive proof in the cause: whatever the defendant’s grants are, he has shown, and they exclude all presumption of others. All the cases of presumption have been for private nuisances and in civil actions; and there the presumption of a grant of an incorporeal right affecting the rights of another from length of time, may be rebutted by proof that the enjoyment was acquiesced in, not by the owner of the inheritance, but by one who possessed a temporary interest only; suchas tenant for life or years, whose negligence or laches cannot be allowed to prejudice the owner of the inheritance. Stark. 1218. 2 Wms. Saunders, 175, d. How much less then, ought the acquiescence of the neighbours in a public nuisance affect the public right? And this is the reason why no length of time will legalize a public nuisance, though it may afford an answer to an action of a private individual. Chitty’s Crim. Law, 132. Unless where there is a limit to prosecutions by statute, there is no limit; there are some offences which by particular statutes must be prosecuted within a limited time, and this shows the general law to be to the contrary.

Public rights cannot be destroyed by long continued encroachments: at least the party who claims the exercise of any right, inconsistent with the free enjoyment of a public easement or privilege, must put himself upon the ground,of prescription, unless he has a grant or some valid authority from the government. The Inhabitants of Arundel v. Hugh M'Cullough, 10 Mass. 70.

A right of prescription cannot exist in the present case, because the street itself is within the memory of man; when it was laid out is well established; the buildings and erections are recent; the defendant has proved when they were made. When a building has continued time out of mind, then it is an ancient one, and it will be intended that it was first put up by a composition with the owner of the land, on laying out the road. 1 Hawk. 694. But the positive proof is to the contrary of all this: these buildings were erected long after the street was laid out. There was mo composition with the Penns; there could be no agreement at the laying out of the town, and the-act of the 22nd of April, 1794, erecting Pittsburg into a borough, is conclusive on the operation of time. 2 Dall. State L. 588. The last section of that act gives to the borough of Pittsburg all such powers, jurisdiction, &c., as are enjoyed by the burgésses and inhabitants of Reading. That act of incorporation, 2 Dall. State L. 124, provides that where any buildings have been heretofore erected within the original plan of the said borough, and shall happen to eneroách on any of the said streets, they shall not be deemed nuisances or abateable as such; but, to prevent a continuance of such encroachments, after such buildings shall be decayed or require rebuilding, the owner of said buildings shall not rebuild on the street, and in case he shall so rebuild, the same shall be taken and adjudged a public nuisance, and be abateable as such. Thus by positive law, we can see no time can legalize these encroachments, or be a bar to the public prosecution; but that they shall be abateable:.the encroachments here have all been made since this act, or all have been repaired since its passage.

I will now state the reasons of Judge Rogers’s dissent:—

Rogers, J.—

í( I would not wish to be understood as saying, that the Circuit Court erred in the principle of construction laid down to the jury, but merely as expressing some doubts which the commonwealth’s counsel had no opportunity of removing. The original agreement between the proprietors, and Craig and Bayard, was made January, 1788. At that time, it does not appear that there was any intention to lay out a town. By that agreement, there can be no question that Craig and Bayard purchased all the lands lying between the rivers Monongahela and Allegheny. Their rights would be bounded only by the rivers. Before a deed was made of the premises, the town of Pittsburg was laid out, according to a plan made by Mr. Woods', and in the deed conveying the property, there is reference to the plan, as a description of the property; but, at the same time, the boundaries of the right are, as in the agreement, the rivers Monongahela and Allegheny. There is no question that the deed may control the agreement; but to do so, it should be clearly in opposition to it, and we are not to suppose that the parties would all give up a right, and a valuable one too, without it clearly appears to be so. If, then, you reconcile the deed with the article, it would best comport with the intention of the parties, which is the general rule. It has occurred to me, that after the purchase, it was resolved to lay out the town, and this with the consent of Craig and Bayard, whose rights would be affected. There is then, no difficulty in giving effect to all the words in the deed. There would be an easement in -the public, but the right of soil would be in Craig and Bayard and their representatives. This construction is fortified by the fact, that the party went into possession, and has continued to enjoy it as their property, from that time until the present.”

“ I cannot exactly agree with the broad proposition laid down, that no length of time, coupled with the enjoyment of a right of property, will be a bar to an indictment for a nuisance. I look upon it as a doctrine of the most extensive nature, and alarming in its consequences. It will affect, more or less, most of the towns in Pennsylvania, and may lead to a scene of controversy, destructive to private rights and the public peace.”

Even on the doubt of Judge Rogers, as to the construction of the conveyance, and the endeavours to reconcile the conveyance with the original agreement, this would be a nuisance; for if it was admitted that the right of soil was conveyed to Craig and Bayard beyond the limits of their lots, yet it is conceded that the right of highway is in the public: the obstruction of this by stone walls and brick buildings, by the owner of the soil, would be a nuisance, indictable and abateable.

The motion fpr a new trial is therefore overruled, and this Court adjudge that the defendant pay a fine of one dollar and the costs of prosecutiou, that he abate the nuisance of his own costs, and stand committed until this sentence be complied with.

{Note. — It should have been mentioned in the introductory remarks, after the words for about thirty-five years,” that a prior owner of lots 143 and 144, erected a frame building on Water Street, near said lots, in the year 1796 or 7; but this building, after standing several years, was long since removed by the proprietor.)  