Summary
Error to the Court of Quarter Sessions of Cumberland county : .Of May Term 1879, No. 178.
Indictment of the Northern Centi-al Railway by the Commonwealth, for nuisance in obstructing a turnpike road by the construetion of its railroad over said turnpike. The defendant pleaded specially that the turnpike was not a public road or highway within' the meaning of the act authorizing an indictment for the obstruction of travel on highways ; that the railroad, jas now constructed, has been in use for twenty-four years, and that an indictment would not lie as by the Act of February 24th 1806, whereby the company was incorporated, a remedy was provided against the defendant for the non-repair of the road.
The court overruled these special pleas, when the case was put' at issue, and a jury returned the following special verdict:
“ That the road set out in the indictment as a public highway is a portion of the Harrisburg, Carlisle and Chambersburg turnpike, built by and belonging to the Harrisburg, Carlisle and Chambers-burg Turnpike Company, incorporated under the Acts of February" 24th 1806 and March 9th 1814, and other supplements thereto.
“ That the defendant is the Northern Central Railway Company,' incorporated, as to the portion crossing the said turnpike, by the ■ name of ‘ The Susquehanna Railroad Company,’ ‘by Act of April 14th 1851, which, with other railroads, under Act of May 3d 1854, was consolidated into the Northern Central Railway Company.
“ That the dirt, clay, stones and embankment mentioned in the indictment as an obstruction to travel and complained of as a nuisance, make the road-bed of said railroad where it crosses said turn-pike at Bridgeport.
“ That the said road-bed is raised two feet on the west side and1 four feet on the east side above the natural line of descent of the turnpike at the point of crossing.
“ -If the ground did not descend naturally, the mound occasioned by the construction of the railroad at the crossing would not produce more obstruction to public travel than necessarily results from' a railroad crossing, with a mound of that size and kind on a level-road ; - but from the nature of the ground, the mound caused by the railroad crossing amounts to a serious inconvenience and a dangerous obstruction to travel.
“The elevation and level of the Northern Central Railway at the crossing is necessary in order to cross the Cumberland Yalley Railroad at grade, as now constructed, near the west end of its bridge over the Susquehanna river, the centre of the track of the Cumberland Yalley Railroad Company being but sixty-two feet from the centre of the turnpike crossing, and the charter of that company being senior to that of the Northern Central Railway Company.
“ To lower the bed of the turnpike so as to allow it to pass under the railroad, would require an expenditure of from $5000 to $8000.
"“ If the turnpike road made by said turnpike company is a public highway within the contemplation of the law, permitting an indictment for the obstruction of travel on highways, and if the railroad company is liable to indictment for obstructing tbe road in the manner in which they have done in the construction of their road over said turnpike, as herein before set out, then w.e find defendant. guilty in manner and form as it stands indicted; otherwise, not guilty.”
* The court, Herman, P. J., delivered the following opinion.
• “ Two questions are presented, by the special verdict in this case, for the opinion of the court. 1. Is the Harrisburg, Carlisle and Chambersburg Turnpike road a public highway within the contemplation of the law permitting an indictment for the obstruction of travel on highways ? 2. Is the Northern Central Railway Company liable to indictment for obstructing this turnpike road in the manner in which it has done in the construction of its railroad over it ?
“ 1. To sustain an indictment, at common law, for nuisance in obstructing a road, the road must first be shown to be public and not private, since, no indictment lies for a nuisance unless the offence be to the public generally, as distinguished from a special and limited class of persons. A public road, however, to be thus protected, needs not have been formally accepted by the municipal authorities. It is enough if over it the public have a right to pass and repass, whether freely, or on payment of a fixed toll. Nor does it matter that the road is owned by a private corporation. Supposing that the public has a right, on payment of fixed toll, to. travel on it, an indictment for nuisance lies for its obstruction: Whart. Crim. Law, 7th ed., sect. 2414. A turnpike road is a public highway, and an indictment -will lie as for a public nuisance against any person placing obstructions thereon: Commonwealth v. Wilkinson, 16 Pick. 176. That was an indictment against Wilkinson for obstructing a turnpike road in Pawtucket, by continuing within the limits of such road certain buildings which had been previously erected thereon, and the principal question in the case was, whether a turnpike road is a highway, and whether an indictment will lie against any person, for an obstruction thereon as a public nuisance. Chief Justice Shaw, delivering the opinion of the court, said: ‘ We think, that a turnpike road is a public highway, established by public authority for public use, and is to be regarded as a public easement, and not as private property. The only difference between this and a common highway is, that instead of being made at the public expense in the first instance, it is authorized and laid out by public authority, and made at the expense of individuals in the first instance, and the cost of construction and maintenance is reimbursed by a toll, levied by public authority for the purpose. Every traveller has the same right to use it, paying the toll established by law, as he would have to use any other public highway.’ This language will apply with equal force to the case now under con sideration. The Harrisburg, Carlisle and Chambersburg Turnpike road was laid out and constructed by public authority for public use, under a charter granted by the legislature in pursuance of a system of public improvement adopted by the state at an early day, and must be regarded as a public easement and not as private property. The costs of its construction and maintenance is reimbursed by a toll levied by public authority for the purpose. The.company caunot close it to the public nor discriminate in favor of any particular person or class of persons. All have the right, upon payment of the toll regulated by law, to use it as common highway. I am very clearly of the opinion that it is a public highway within the contemplation of the law permitting an indictment for the obstruction of travel on highways.
“ 2. Is the Northern Central Railway Company liable to indictment for obstructing this turnpike road in the manner in which it has done in the construction of its railroad over it? * * * The Susquehanna Railroad Company, incorporated by the Act of 14th April 1851, was by the provisions of its charter made subject to all the provisions and restrictions of the General Railroad Act, approved 19th February 1849. The Consolidation Act of 3d May 1854, consolidating this and other railroad companies into the Northern Central Railway Company, provides, likewise, that such consolidation company shall be subject to the provisions of the General Railroad Act of 19th February 1849. The 12th section of the Act of 19th February 1849, very clearly points out the duty of the company in the construction of its railroad whenever it shall be necessary to cross or intersect any established road or way. It provides: ‘ That whenever, in the construction of such road or roads, it shall be necessary to cross or intersect any established road or way, it shall be the duty of the president and directors of the said company, so to construct the said road across such established road or way, as not to. impede the passage or transportation of persons or property along the same.’ The meaning of this language is plain.; there can be no uncertainty about it. The company may construct its railroad across any established road or way, whenever it may be necessary to cross or intersect it; but, in doing so, it must so construct its road across such established road or way as not to impede the passage or transportation of persons or property along the same. If the company so constructs its railway, across any established road or way, as to impede the passage or transportation of person or property over the same, it does, not only, what it has no right to do, but, what the law prohibits it from doing. The Northern Central Railway Company, at this crossing, has so constructed its road as to be a serious inconvenience and dangerous obstruction to travel along the turnpike road, which is an established road or way, and thus has committed an act wholly unauthorized and illegal, and that this is an indictable nuisance, cannot, I think, be seriously doubted. The offence consists, not in crossing the turnpike road, but in the manner in which the crossing is constructed. The company has the right to cross it, but in doing so, it must so construct its railroad as not to obstruct the public travel or transportation of property over it.
“ Corporations, other than municipal, may become amenable to the criminal law for public nuisance and may be indicted therefor: Canal Co. v. The Commonwealth, 10 P. F. Smith ,867.
“It is the opinion of the court upon the facts found by the special verdict: 1st. That the turnpike road, made by the Harrisburg, Carlisle and Chambersburg Turnpike Road Company, is a public highway within the contemplation of the law permitting an indictment for the obstruction of travel on highways. 2d. That the Northern Central Railway Company is liable to indictment for' obstructing the said turnpike road in the manner in which it has done in the construction of its railroad upon it. Therefore, the verdict of the jury must be entered against the Northern Central Railway Company, finding it guilty in manner and form as it stands indicted.
“ And now it is entered as the verdict of the jury, that the Northern Central Railway Company, the defendant in this case, is guilty in manner and form as it stands indicted, and thereupon, the sentence of the court is, that the Northern Central Railway Company abate the nuisance set forth in the indictment on or before the first day of April next, and pay a fine of one dollar and the costs of prosecution.”
The defendant took this writ, assigning for error the overruling of the special pleas, and in entering the verdict as above.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
