104 Ky. 366 | Ky. Ct. App. | 1898
delivered Tins opinion of the court.
Indicted, for maintaining a nuisance by tearing down and keeping down for three months an overhead bridge where a public road crossed its track, the appellee succeeded in having its demurrer to the indictment sustained upon the ground that chapter 110 of the Kentucky Statutes on the subject of “Roads and Passways,” has repealed and supplanted the common law remedy for the obstruction of public roads, and has vested exclusive jurisdiction of such offenses in County and Quarterly Courts. The first section of that chapter, to which we are referred a.s tending to support this conclusion, is that wherein the fiscal court of each county is given “general charge and supervision of the public roads and bridges therein,” and is charged with prescribing “the necessary rules and regulations for repairing and keeping same in , order, and for the proper management of all roads and bridges.” Section 4306. This section is clearly no departure from the old law on the same subject, and we think has no reference whatever to the jurisdiction of such criminal courts as may be charged with the enforcement of the penal statutes on the subject of obstructing public roads. TYe are also referred to section 4335, Ky. Stats., which is
The next section relied on is section 4335: “Any person who shall willfully obstruct, injure or destroy any of said public roads or bridges, ® * or who shall without right take possession of or use or appropriate the same, shall be fined for each offense not less than five nor more than fifty dollars, to be recovered in like
It was not a public offense for the company to have taken down its bridge; nor can we know7 it was such an offense for it to have kept it dowm for three months, even if this resulted, as charged, in the “obstruction of the public road,” and in the “'inconvenience of the traveling public.” The offense in such a case, as we have seen, consists in suffering its bridge to remain down an un