Oyer and Terminer, &c. at Philadelphia:
September Sessions, 1785.
This was an indictment for a Nuisance, in erecting a wharf on the public property. The defendant offered witnesses to prove that the erection of the wharf has been beneficial to the public, and, therefore, not to be regarded as a Nuisance.
But McKean, Chief Justice, delivered the opinion of the Court, that the evidence was inadmissible, for two reasons: First, Because it would only amount to matter of opinion, whereas it is on facts the Court must proceed; and the necessary facts are already in proof. Secondly; Because it would be no justification; for, on the same principle that the defendant might carry his wharf 12 feet, he could justify extending it farther; or any other man might excuse a similar intrusion. Suppose, for instance, a street were 60 feet wide, 12 feet might be taken off it, without doing any material injury to the public property, or creating any great obstruction to passengers; yet, surely this will not justify any man's actually building upon, and assuming the property of the 12 feet that could be thus spared.
Citation: Respublica v. Caldwell, 1 Dall. 150, 1 U.S. 150 (O. T. Phila. 1785)
Last modified: January 14, 2014