OYER and TERMINER, &c.
at Philadelphia:
RESPUBLICA verʃus CALDWELL
T
HIS was an indictment for a Nuiʃance, in erecting a wharf on the public property. The defendant offered witnefses to prove that the erection of the wharf has been beneficial to the public, and therefore, not to be regarded as a Nuifance.
M‘KEAN, Chieƒ Juʃtice, delivered the opinion of the Court, that the evidence was inadmiffible, for two reafons : Firʃt, Becaufe it would only amount to matter of opinion, whereas it is on facts the Court muft proceed ; and the neceffary facts are already in proof. Secondly; Becaufe it would be no juftification ; for, on the farne principle that the defendant might carry his wharf 12 feet, he could juftify extending it farther ; or any other man might excufe a fimilar intrufion. Suppofe, for inftance, a ftreet were 60 fect wide, 12 feet might be taken off it, without doing any material injury to the public property, or creating any great obftruction to paftengers ; yet, furely this will not juftify any man's actually building upon, and affuming the property of the 12 feet that could be thus fpared.
