Philadelphia, Wilmington & Baltimore Rail Road v. State

An indictment against a Rail Road Co. for erecting and maintaining a nuisance upon a public roacl, described the venue as “in Cecil County,” and the locality of the alleged nuisance at the time of taking the inquisition as “at the County aforesaid,” and especially set out in each count the nature of the nuisance, that “it was a common nuisance.” No other County was named in the indictment; Held: That no presumption could arise that the offense was committed in any other County, and that the indictment possessed the essential attribute of certainty to a reasonable extent, and was good on demurrer. Nuisance — Public: Prescription. — There is no such thing as a prescriptive right to maintain a public nuisance.

Appeal from the Circuit Court for Cecil County : This appeal is from a judgment of the Circuit Court for Cecil County, in favor of the State, upon an indictment charging the appellant with erecting and maintaining a nuisance upon a public highway. The case is stated in the opinion of the Court. The cause was argued before Bartol, Goldsborough and Cochran, J. .1st. A demurrer goes bach to the first error in pleading. Yingling vs. Hoppe, 9 Gill, 313. All the counts are defective in not stating the road and bridge to be in Cecil County; from the description in the indictment the bridge may be in the State of Delaware. In an indictment for obstructing highways by an impassable bridge or otherwise, the County in which the obstruction is placed should be stated. Arch. Cr. PI., 156. 2nd. It is not stated that the road is an established road or way. There is no such thing as a road by prescription in this State, a prescription is founded upon a user for a length of time, whereof the memory of man runneth not to the contrary, which means from- the time Richard the First began his reign; no user in this State could date so far back. Any interruption of the user since that period would destroy the prescription. 2 Black. Corn., 81. Long user furnishes a presumption that the user had a lawful beginning, but is not evidence of a prescriptive right in this State. Twenty years user or possession, is evidence of a grant, deed, or any other document necessary to legalize such user or possession. Burke vs. Negro Joe, 6 G. & J., 186. Twenty years user of a road by the public, and keeping it in repair, would give the public a right to it as a highway. All the old highways are held by that title, no records can be found giving the public the right to old ways. The abandonment of a highway for twenty years would extinguish the public right of user, and this often occurs. In all cases where the user or abandonment has continued for twenty years, the presumption is, that they had a lawful beginning. A gate across a highway after twenty years is not a nuisance. Bac. Abr., Title “Nuisance,” A. 3rd. The public use of this bridge for over twenty years, without complaint, and passing it with wagons, carts and carriages for all that period, furnishes a conclusive presumption of an understanding with the proper authorities, that the bridge was and is of proper width; ten feet in the clear is wide enough for a wagon or carriage. These vehicles are all made of the same width, for the purpose of running in the same tracks on the highways, and these tracks are five feet apart. The question, whether twenty years existence legalizes a nuisance, does not arise in this case. Here the thing complained of, was an act on the part of the appellants done by authority of law, and not a nuisance, for obstructions which at common law are nuisances, by statute cease to be such. Ang. on Highways, sec. 231. Authority had been given to the appellants by their charter, to cross or intersect any established road or way so as not to impede the passage or transportation of persons or property along the same. Act 1831, ch. 296, sec. 16. If a change in the travel requires a wider bridge than was necessary when this bridge was built, the company is not hound to widen it. Bex vs. Devon, 4 Barn. (& Cress., 610. 1. The venue is properly laid in the 1st count of the indictment. Wharton’s Precedents, 402, title “Nuisance, general frame of indictment.’ ’ The 2nd count of tbe indictment charges that the bridge “was so narrow and that said public road was so obstructed and straitened, that the citizens could not pass,” &c., “and that by reason of the narrowness of said bridge, the passage and transportation of persons and property was then and still is impeded,” &c. The removal of the nuisance does not require that the bridge shall be made of any specific width, but that it shall be so wide as, in the language of the Act of Assembly, “not to impede the passage or transportation of persons or property along said road.” That it does so impede now is admitted by the appellant by his plea. It is true the English forms for not repairing highways “show how the road was out of repair,” but they do this in such general terms as “ruinous, miry, deep, broken.” Arch. Or. PI., 485. And if this count were for not repairing, which it is not, “narrow” is as comprehensive and explicit a term as those used in the English forms. The 3rd count charges that the bridge itself £ ‘is an obstruction to the said public road, so that the citizens of said county cannot pass and repass,” &c. This count will be found to be in the exact form of precedents in Arch. Or. PI., 482, and Whar. Precdts., 406. 2. The description in the indictment, that this is a public road, is the usual description in Maryland as designating a road used by the public, to which they have an exclusive right, and which the county is bound to repair, from a private road. A road may be abandoned; but the abandonment must be voluntary, if done in obedience to force it becomes exclusion. 3. The county authorities could not give permission to the' railroad company to iApede the public travel. A public road can only be altered, narrowed, changed or closed in the mode prescribed by statute. This required the petition of the inhabitants, the appointment of commissioners, &c., and has been the law of the State from a very early period. See Acts of 1194, ch. 52, and 1821, ch. 152. Where the road has been altered, narrowed or closed without due authority, the public may at any time indict the party thus obstructing the road, and it is immaterial how long this obstruction has continued. Ang. on Highways, sec. 224. The character of the impediment cannot be tried by the pleadings in this case. A real impediment is admitted, and the fact that it has existed for twenty years is alone relied --on for defence. The plea disclosés the additional fact, that the bridge was not built by the appellants, but was rebuilt by them in 1843. The thing complained of was therefore erected by this defendant muck less than twenty years ago. The Acts of Assembly authorizing the railroad company to cross public roads is specific and clear in requiring the crossing to be so made as not to impede the transportation or passage of persons or property over said public roads, and these Acts of Assembly are strictly construed, and those acting under them can only do that which they authorize, and in the precise way and manner therein prescribed, and if they transcend or depart from the Statute, it is a nuisance. Ang. on Highways, sec. 231. Hughes vs. R. R. Go., 2 R. I. Hep., 493. Hex vs. Morris, 1 Ba/m & Adol., 441. Regina vs. Railway Go., 2 Adol. & EL, N. 8., 341. Regina, vs. Bcoit, 3 Id., 543. Some of these cases are for a ‘mandamus it is true, but in Rex vs. Can. Go., cited in Regina vs. Railway Go., 1 Railway Gases, 323, it is decided that if a company acting on statutory powers, deviate from them, and in so doing obstruct a highway, they may bo indicted. See also Regina vs. Birm. &Glo. Raihoay Go., 3 Adol. & EL, N. 8., 223. If the bridge is once a nuisance, the principle of nullum tempus applies.