M. H. & E. R. R. Co. v. Comlth.

• Decision Date: 13 October 1910
• Citation: 140 Ky. 255
• Parties: Madisonville, Hartford & Eastern R. R. Co. v. Commonwealth.
• Court: Kentucky Court of Appeals

140 Ky. 255

Madisonville, Hartford & Eastern R. R. Co. v. Commonwealth.

Court of Appeals of Kentucky.

Decided October 13, 1910.

Appeal from Ohio Circuit Court.

GLENN & SIMMERMAN, BENJAMIN D. WARFIELD, and CHAS. H. MOORMAN for appellant.

JAMES BREATHITT, Attorney General, and TOM B. McGREGOR, Asst. Attorney General, for appellee.

OPINION OF THE COURT BY JUDGE HOBSON — Affirming.

The Madisonville, Hartford & Eastern Railway Company was indicted by the grand jury of Ohio county for the offense of maintaining a common nuisance by obstructing a public road. It demurred to the indictment; its demurrer was overruled. Proof was heard. The court overruled its motion to instruct the jury peremptorily to find for the defendant; and the case having been submitted to the jury, they found it guilty as charged and fixed its punishment at a fine of $250. From the judgment entered on the verdict, it appeals.

The first question made on the appeal is that the indictment is insufficient, and that the demurrer to it should have been sustained on the ground that the indictment does not show that the county road was obstructed for an unnecessary length of time. The obstruction complained of occurred during the construction of the railroad. In the case of Commonwealth v. Morganfield & Atlanta R. R. Co., 30 R. 1274, we said in substance that the authority conferred upon the railroad to cross highways necessarily includes the right to enter upon the highway and change its grade, and that in doing this, however carefully it may be done, the company must necessarily obstruct the highway for a while; but it is bound to repair and replace the highway in a suitable state for travel with no more delay than is necessary; that it is liable for maintaining a nuisance, if it permits the crossing to be out of order for an unreasonable and unnecessary length of time; and that this may be charged in the indictment in terms or by so stating the time that the lack of necessity and reason for the obstructing will be apparent. In the subsequent case of I. C. R. R. Co. v. Commonwealth, 129 S. W. 94, 138 Ky. ___, we also held that it is not necessary that the words "unreasonable length of time" be used in the indictment, and that it is sufficient if the language used conveys this idea. The indictment in the case before us charges that the defendant by its track, ties, rails and earth did for a long and unreasonable time and for more than three months next before November 18, 1909, continuously, willfully and unlawfully obstruct the road referred to and prevent public travel thereon, and thereover, and willfully failed to prepare or maintain any reasonable crossings or approaches to its ties, track or rails upon the highway, and so prevented the citizens of the county and all the good people of the commonwealth from using the road at that point. The allegations that the road was obstructed for a long and unreasonable length of time and for more than three months, and that the defendant did not maintain for this length of time any reasonable crossing and so prevented the public from using the road, certainly discloses a state of facts that the defendant could not justify on the idea that it had temporarily interfered with the road but no...