Commonwealth v. Marshall

137 Pa. 170 | Pa. | 1890

Opinion,

Mr. Justice McCollum:

The defendant was indicted for obstructing a public road which was duly laid out in 1849, and was opened by the township supervisors that or the following year. It was claimed by him, on the trial, that the road was opened where it was laid by the viewers. The location of the roadbed has never been changed since, but has always been maintained by the supervisors where it was then constructed or defined. The fence on the north side remains where it was placed when the road was opened, and is about fifteen feet from the centre of the roadbed. The only question submitted to the jury was whether the defendant had built his wall upon or within the limits of this roadbed, and thereby obstructed public travel. There was a verdict of guilty, followed by a sentence of the defendant, and a removal of the case to this court. His contention was, and now is, that the road was laid and opened north of his property line, and that his wall was built south of that line. But, as it is established by the verdict that his wall was within the limits of the defined roadbed, it is obvious that his 'property line is there, if his wall was built south of it. In that event the conclusion must be, either that the road was not laid north of the line, or it was not opened as laid. But if it was laid and opened, as he contends, his wall was north of his property line, and the conviction must stand, unless erroneous instructions contributed to it.

We discover no error in the denial of the defendant’s first, third, fourth, and fifth points. The affirmance of his second point was not a concession that the facts were as stated in it, and that it was not intended as such sufficiently appears from the answer to the point, and the general charge. The road was not opened of the width of thirty-three feet, and the question was not whether his wall occupied any portion of the Ash-bridge ground, but whether it was upon or within the limits of the roadbed as defined by the supervisors, and used by the public for forty years.

We do not think the defendant was prejudiced in any degree by the remarks of the learned judge relative to the rights and duties of supervisors in opening and widening roads. The instructions were so distinct and positive that there could be no conviction of the defendant unless his wall was built within the limits of the established roadbed, that the jury could not misunderstand them. The roadbed does not occupy the entire width of the road as laid. It is that part of the road which is designated and maintained by the township supervisors for the public to travel upon, and it is usually bounded by ditches on either side of it. An instruction that the erection of the wall within sixteen and one half feet of the centre of the roadbed would authorize a conviction of the defendant, might have raised the question discussed in his paper-book. But that question is not on this record. We will say, however, that, if such instruction had been given in this case, there is nothing before us on which we could pronounce it erroneous. The learned judge told the jury that, under the evidence in the case, the supervisors could not change the location of the road, but if it was not opened of the full width of thirty-three feet, they might widen it sixteen and one half feet on each side from the centre of the roadbed. But, as the defendant has not printed the evidence for our information, we cannot deny the accuracy of an instruction based upon it. We are unable to see how a party who admits that a road was opened where it was laid out, and that the roadbed which was then constructed or defined has always been maintained and used by the public since, can lawfully obstruct either.

The judgment is affirmed.