The opinion of the court was delivered by
Ross, J.
It is well settled in this State and elsewhere, generally, that a railroad corporation may be indicted for obstructing a highway. State v. The Vt. Cen. R. R. Co. 27 Vt. 103; Pierce R. R. 243.
It is not contended by the respondent, except inferentially from its requests, that it could not be indicted for such obstruction. But it contends, that it is to be presumed that the Southern Yermont Railroad Company, when it laid out *154and built its road for about forty rods wholly within the limits of the highway, took the whole highway, or if not the whole, sufficient of it to allow it to widen, repair, and straighten its road-bed and track from time to time, as the exigencies of its business might require. On the facts, which the evidence of the State tended to establish — and there is no statement in the exceptions of any evidence tending to establish the contrary — we do not think any such presumption arose. The facts which the evidence tended to establish, are, that the Southern Vermont Railroad Company took the highway, so far as it occupied it in constructing its road, without right, without agreement with the selectmen of the town therefor, without the action of commissioners, and without having provided any substitute highway. The statute, R. L. s. 3377, then in force, allowed a railroad corporation to take a highway for the construction of its railroad only upon agreement in writing with the selectmen of the town, or by the award in writing for a substitute highway, of the commissioners to appraise land damages,. which agreement and award are required to be recorded in the town clerk’s office — R. L. s. 3379 — and then vest in the corporation the right to take the highway only upon its construction of the substitute highway. There was no evidence in the case tending to show that the Southern Vermont Railroad Company ever acquired the right to take the highway in question by either of the methods given by statute. On the facts and evidence disclosed in the exceptions, it can hardly be doubted that the Southern Vermont Railroad Company might have been indicted for obstructing the highway, for erecting and maintaining a nuisance therein. On general principles, relating to the law of nuisances, the maintenance of a nuisance is the constant creation of a fresh nuisance; and that the lessee of premises on which the lessor has erected a continuing nuisance becomes liable to indictment by continuing to maintain the same, especially after notice thereof. The County *155Court held, that the respondent, the lessee of the Southern Vermont Railroad Company, finding the railroad constructed over and along the westerly side of the highway, and the highway in use along the easterly side of the old highway had, without notice to the contrary, the right to assume and presume that its lessor had legally acquired the right to occupy so much of the highway as it actually did occupy. With no agreement or award recorded, as required by statute, this holding is as favorable, if not more, to the respondent than it was- entitled to, upon the law and evidence in the case. The court as fully complied with the respondent’s first four requests as it was entitled to have them answered.
The County Court substantially complied with the respondent’s 5th, 6th, and 7th requests, so far as they asked the court to hold and charge that the respondent was not guilty for what the Southern Vermont Railroad Company had done on said highway, nor for continuing the structure placed thereon by that company without being notified that the location and construction of the road in the highway was originally wrongful. It was not entitled to have that part of said requests complied with, which asked for a charge that the original location and construction of the railroad by the Southern Vermont Railroad Company was not an unlawful obstruction of the highway. Every obstruction of a highway by a railroad is unlawful, unless the right to use it for .the construction of the railroad is first acquired in the manner pointed out by the statute.
The 8th request, “ That if the jury find that the repairs that the respondent made in 1876 and 1877 were necessary and proper to be done, and were made in a proper aiid prudent manner, doing no unnecessary damage, respondent should not be found guilty,” was substantially complied with, so far as relates to the then existing road-bed and track. After telling the jury that any obstruction placed upon the highway, that impedes or delays public travel, *156would be a nuisance, the court say: “It would hardly do to say that if in the proper exercise of their right to repair their railroad some gravel ran down on the highway and left a slight impediment to the public travel, that, if it was done prudently by the employes of the railroad company, that that should be called a public nuisance; because in many cases I can conceive such circumstances might necessarily follow from the very work in which they were engaged; but, if in doing their work, stone, gravel, or other material, is suffered to run into the highway, and suffered to remain there an unreasonable time and impede the use of it (such use as the public had the right to enjoy), that would be a nuisance for which these parties might be held answerable under this indictment.” This allowed the respondent to repair in a reasonable and prudent manner the railroad which the Southern Vermont Railroad Company had constructed on the highway, but did not allow it to encroach further upon the rights of the public in the highway without being liable therefor. If the respondent could not be held liable for continuing what its lessor had placed in the highway, the foregoing was a reasonable and just statement of its rights and liabilities in regard to repairs upon the then existing road, and in regard to further encroachments upon the rights of the public in what remained of the highway. The same doctrine, substantially, is applied to the respondent’s right to repair, or change, the curvature in its track. We discover no error in the charge of the court injurious to the respondent, nor in its refusal to charge as requested. The views already expressed are conclusive that there was no error in the court’s refusal to comply with the respondent’s remaining requests, 10th to 19th inclusive. The presumptions, which under other circumstances might arise from the long acquiescence of the town, and from the lapse of time in regard to the original taking by the lessor, having been, by virtue of right, embodied in requests 15th and lGth, were rebutted by the evidence of the State, tend*157ing to show that such origina] taking was without the authority of law. Under the evidence, it would have been error for the court to have complied with these requests. Upon the evidence and circumstances of the case, no error appears in the court’s charge, nor in its failure to charge as requested. We discover no error in the admission of the testimony excepted to. It was necessary to give the jury a full picture of the relations of the railroad and highway to each other within the limits of the original highway, in order that they might correctly determine whether the obstructions complained of were a nuisance. This the testimony excepted to tended to furnish.
The j udgment is, that the respondent takes nothing by its exceptions, and the sentence determined upon by the County Court, but suspended, is imposed.