Philadelphia, Wilmington & Baltimore Rail Road v. State

| Md. | Oct 9, 1863

Goldsborough, J.,

delivered the opinion of this Court:

This case comes before us by appeal -from a judgment of the Circuit Court for Cecil County, in favor of the appellee upon an indictment charging the appellant with the erection and continuance of a bridge across iis railroad, which is alleged to be a nuisance.

The indictment contains three counts: The first count charges that a certain railroad company under the name of the Delaware and Maryland Bail Boad' Company, was incorporated by the Act of 1831, ch. 296, with power to construct a railroad therein described. This Act provided, that in constructing the road, whenever it was necessary to cross or intersect any established road or way, it should be the duty of the company so to construct their road as not to impede the passage or transportation of persons or property along the public road. That by a series-of Acts mentioned in the indictment, the above named company became merged in the appellant, and by the Act of 1837, ch. 30, it was enacted that the las-t named company should be responsible for all the engagements and liabilities of all the companies united by said Act. That the Delaware and Maryland Rail Road Company in making an excavation for the bed of its road, intersected a public road described in the indictment, and made the excavation so deep as to impede the travel thereon. That to remedy the impediment, the railroad company constructed a bridge across the excavation to enable the public to use the road thus intersected. That after the erection of the bridge, it was suffered to become ruinous, broken and dangerous, sow that the citizens of Cecil County could not pass or rej)ass- without danger to their lives or the loss of their property. To this count, the appellant pleaded not guilty, and put itself for trial before the Court, and the appellee did likewise. The Court upon this Gount rendered judgment for the appellant.

The second count charges that the bridge so erected was-so' narrow that by reason thereof, the citizens of Cecil County were impeded in the use of the public road aforesaid, and was thus a nuisance.

The third count alleges that the appellant unlawfully and unjustly did permit and suffer the said bridge to he and remain over said excavation so that the said public road was thereby obstructed, and the continuance of the bridge was therefore a nuisance.

To the second and third counts the appellant pleaded that the said bridge was built by the Wilmington and Susquehanna Rail Road Company more than twenty years-before the presentment in this case and before the union of said corporation with the appellant, and that tbe said bridge was repaired by the appellant, in 1849, and that it has kept the same in repair ever since.

That the bridge from tbe time of its erection, bas been ton feet wide in tbe clear, and that it has been used and passed over for the period aforesaid, without any complaint until the finding of the presentment in this case.

To this plea the appellee demurred, and the appellant joined issue on the demurrer. Judgment was rendered for the appellee on the demurrer, and from that judgment this •appeal is taken.

In the argument before us the appellant properly insisted, that this Court (in view of the demurrer) is required to examino the whole record for the purpose of discovering the first substantial defect in the pleadings and to give judgment against the party committing the first fault. See State vs. Gaither, 11 G. & J., 160; State vs. Nicols, 10 G. & J., 27. After a careful examination of the indictment and the legal defects alleged to bo apparent therein, we are of opinion that it has the essential attribute of certainty to a reasonable extent. See State vs. Nutwell, 1 Gill, 54. It describes the venue as in Cecil County. It describes tbe locality of the alleged nuisance at the time of taking the inquisition, as at the County aforesaid. It specially sets out in each count the nature of the nuisance. That it was a common nuisance to the citizen of Cecil County, and as no other County is named in the indictment, no presumption could arise that the offence was committed in any other County.

The only remaining question for us to consider arises on the appellant’s plea set up as a defence to the second and third counts in the indictment.

The existence of the public road being conceded by the plea, it is manifest that the citizens of Cecil County were entitled to the unobstructed use of the same and every part thereof. The privilege to build the railroad was granted with the condition that it should not impede the passage or transportation of persons or property along said public road; we find no authority claimed by the appellant by which it could limit the width of the bridge. Whatever may have been tho amount of the travel on the public road before or at tho time of the erection of the bridge or thereafter, the appellant can find no legal justification for obstructing the road in the forbearance of the citizens of Cecil County to complain of the obstruction, it is conceded by the plea that the bridge is but ten feet in the clear. The width of the bridge was fixed by the voluntary act of the appellant; and if the travel on the public road was so increased at the timo of talcing of the inquisition, that by reason of the narrowness of the bridge, the passage or transportation of persons or property was then impeded, it was a nuisance.

(Decided Oct. 9th, 1863.)

It is contended on the part of the appellant that “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.” This is doubtless true. It is further contended that “the public use of this bridge for over “twenty years and passing it with wagons, carts and carriages for all that period, furnishes a conclusivo juesumption of an understanding with the proper authorities, that the bridge was and is of proper width,” and the appellant asserts its defence to be, “that the public uso of the bridge for more than twenty years without complaint, shows that it never was a nuisance.”

We find the opposite doctrine sustained by the following authorities; in 9 Wendell’s B., 316, the Court say: “There is no such thing as a prescriptive right or any other right to maintain a public nuisance; whether it was a nuisance or not was a question of fact, and the jury were competent judges upon this matter.” See also Roscoe’s Criminal Ev., 739. 1 East, 190. 1 Denio’s R., 524. 2 Humphry’s Tenn., R., 543. Upon the weight of these authorities, we think the appellant’s plea cannot be sustained and the judgment of the Circuit Court must be affirmed.

Judgment affirmed.