Cincinnati Railroad Company v. The Commonwealth

• Decision Date: 28 February 1882
• Citation: 80 Ky. 137
• Parties: Cincinnati Railroad Company v. The Commonwealth.
• Court: Kentucky Court of Appeals

Page 137

80 Ky. 137

Cincinnati Railroad Company v. The Commonwealth.

Court of Appeals of Kentucky.

February 28, 1882.

APPEAL FROM MERCER CIRCUIT COURT.

DURHAM & JACOBS FOR APPELLANT.

P. W. HARDIN, ATTORNEY GENERAL, FOR APPELLEE.

CHIEF JUSTICE LEWIS DELIVERED THE OPINION OF THE COURT.

The indictment in this case is for the offense of a public nuisance, and the verdict of the jury and judgment of the court being against the defendant, this appeal is prosecuted.

It is contended that the indictment is defective, and the demurrer to it should have been sustained upon the grounds — first, that the facts stated do not constitute a public offense, and second, that the trustees of the Cincinnati Southern Railroad are not a corporation, not indictable as such, but are answerable for a violation of law only individually.

The particular circumstances of the offense charged in the indictment are, that the defendant did, on the 16th day of October, 1880, unlawfully obstruct a public road in Mercer county, at a point where it crosses the Cincinnati Southern Railway, by leaving a hand-car upon said road, and hanging upon said car buckets and clothing, by reason of which, and the location of said car upon the road, the horses of people using and passing upon the road were frightened, and the lives of persons endangered, and the road obstructed.

"Public or common nuisances," as defined by Blackstone, "are a species of offenses against public order and economical regimen of the state, being either the doing of a thing to the annoyance of all the King's subjects, or the neglecting to do a thing which the common good required. . . . Of this nature are annoyances in highways, bridges, or public rivers, by rendering the same inconvenient or dangerous to pass, either positively by actual obstruction or negatively by want of reparation."

A public road is a way established and adopted by proper authority for the use of the public, and over which every person has a right to pass, and to use for all purposes of travel or transportation to which it is adapted and devoted; "and though any temporary use of a highway or street that is rendered absolutely necessary from the necessities of trade or erection of buildings that do not unnecessarily or unreasonably obstruct the same is lawful, and temporary obstructions arising from accidental causes do not render a person liable for a nuisance, provided no unreasonable or unnecessary delay is permitted, still no cause whatever will justify any unreasonable use of a public road or street." (Wood on Law of Nuisance, section 258.)

To secure the free use and enjoyment of a public road, it is necessary that it be always open and unobstructed. The offense of obstructing it is not therefore determined necessarily by the length of time the thing that worketh hurt, inconvenience, or damage to the public continues, or by the number of times it may be repeated; nor is it necessary, in order to constitute the offense, that actual injury be suffered by any person. It is no more necessary that a public road shall be repeatedly, continuously, or habitually obstructed by a person to render him guilty of the offense of a public nuisance than that any other violation of law shall be in order to make the offense complete. But, subject to the exemptions arising from absolute necessity and accidental causes before mentioned, the offense is committed when by actual obstruction or impediment a public road is rendered by any person inconvenient or dangerous to pass.

To secure the reasonable and proper use and enjoyment of the public road by the public, and of the railroad by its owners, each must be required to observe the maxim of law that every person is restricted against using his property to the prejudice of others. And as it is plain that the railroad and the public road cannot at the crossing place both be occupied...