Palatka & I.R. Ry. Co. v. State

• Decision Date: 12 November 1887
• Citation: 23 Fla. 546,3 So. 158
• Court: Florida Supreme Court
• Parties: PALATKA & I. R. RY. CO. v. STATE.

3 So. 158

23 Fla. 546

PALATKA & I. R. RY. CO. v. STATE.

Florida Supreme Court

November 12, 1887

Error to circuit court, Putnam county; THOMAS F KING, Judge.

The indictment in this case against the Palatka & Indian River Railway Company was found November 20, 1885, and charges that the road described as leading from Brown's Landing, on the St. Johns river, to the city of Palatka, and known as the 'Brown's Landing Road,' was, at the time of the committing of the alleged nuisance, and yet is, a common highway in Putnam county, in this state, made and laid out for the people of this state to go, return, and pass, at their free pleasure and will, on foot, on horseback, and in vehicles; and 'that on the first day of July, A. D. 1885 the Palatka & Indian River Railway Company, a corporation existing under and by the laws of Florida, did willfully obstruct said highway, by then and there digging ditches throwing up embankments, and placing cross-ties and iron rails on and in said common highway in front of the property of William Conrad, Dr. Anthony Schaffranack, F. A. Garrison and William Thompson, in the county and state aforesaid, and now do obstruct the said highway in manner and form as aforesaid, by which the common highway, as aforesaid, is so obstructed and stopped that the people of the said state cannot go and travel in and through said highway as they were wont and ought, to the great damage and public nuisance against the form of the statute,' etc.

At the spring term, 1886, of Putnam county circuit court, there was a trial by jury, and a verdict of guilty, and a judgment of the court, 'that the defendant be fined one hundred dollars, and that the obstructions complained of in the indictment on the Brown's Landing road or highway, and proved, towit, the embankment, ditches, cross-ties, and iron rails, be removed from said highway by the defendant.' The other facts of the case are stated in the opinion.

Syllabus by the Court

SYLLABUS

Motions for a new trial or in arrest of judgment cannot be made after the term of the court at which the trial was had.

No agreement between parties or counsel as to a trial of a cause is of any effect before the court, unless the evidence of it is in writing, and subscribed by the party or his attorney, against whom it is alleged, or is made in open court, and noted by the judge in his minutes. Com. Law Rule 43.

The statutes of this state, prescribing the powers and duties of railroad companies as to highways, do not affect the rules of pleading controlling indictments for obstructing a highway, further than to require that the act charged to be such obstruction shall appear to be an act which is not authorized by such statutes.

The allegation in an indictment that the road described was and is 'a common highway in Putnam county, made and laid out for the people of this state to go, return, and pass at their free pleasure and will on foot, on horseback, and in vehicles,' is equivalent to an allegation that the road was and is an 'established highway' under the statute punishing the obstruction of any public road or established highway, and providing for the removal of the obstruction.

Where an indictment against a railroad company under the above statute shows a complete obstruction of the highway against travel, so as to prevent the people from traveling the same, it is good in law. No such privilege is given by the statutes to railroad companies.

An indictment against a railroad company for constructing its road across or upon a highway at a point outside of the authorized route of the railroad should affirmatively show that the railroad is outside of such route.

A grant to a railroad company of the right to construct its road along, upon, or across, or to use an existing highway, is not to be construed as a power to destroy the highway. This is the rule of construction, unless the language of the grant is such as to show unmistakably an intention to grant such power.

A grant of the power to cut through a highway is, in the absence of an express provision to the contrary, impliedly attended by an obligation to furnish to the public a safe crossing.

Our statute does not give to railway companies the power to construct their roads across or along highways in such a manner as to block up and permanently obstruct the same, so that it cannot be used by the public while the trains are neither passing over it nor otherwise properly using their tracks.

The provisions of the statute, including those as to carrying a highway which may be touched, intersected, or crossed by a railroad, under or over the railroad track, 'as may be found most expedient for the public good,' and as to making a change in the line of the high way where an embankment or cut calls for it, or it is desirable with a view to a more easy ascent or descent, and the grant of authority to the railroad company to acquire additional land for the construction of the road or highway on the new line, were intended to preserve to the public the old highway on the original surface, or on a new surface, or a new highway on the new line.

The meaning of these provisions, in so far as they relate to the manner of the construction of the railroad, (independent of any questions which may arise as to the use or operation of it,) is nothing more than that, when the conditions of locality or topography are such that the railroad and highway cannot cross or intersect on the same surface, the railroad company may pass the highway over the railroad, or under, according as the former or latter shall be more for the public good; and, furthermore, if it be that the conditions are such as not to permit, consistently with its practical use, the grading of the highway to the level of the railroad cur or embankment, to authorize a detour or change in the route of the highway.

This new route or detour in the highway, after being established upon land to be acquired by the company, is to be maintained as other public highways, and to be open as a public highway, and not as a private road of the company.

The power given by the statute to the company when its road intersects or crosses a highway includes the power to alter the grade of the highway, provided it is so done as not to substantially impair the usefulness of the highway.

If there be a cut or embankment, and the level of the highway is graded down or up to the surface of the railroad track in such cut or on such embankment, and this is done in such a manner and at such an angle of descent or ascent as not to work any substantial detriment to either persons or vehicles traveling the highway, the company in so doing does not transcend its powers or duties as to such highway.

Where the topography of the country is such that the cut or embankment makes a change of the line of the highway either necessary or desirable, 'with a view to a more easy ascent or descent,' the change may be made.

Where the railroad passes along instead of across the highway, it must be so constructed as not to destroy or obstruct the latter, or prevent its use by the public.

In cases of nuisance each judgment should be adapted to the nature of the nuisance of which the defendant may be convicted. The judgment should not be inconsistent with the legal rights of the party convicted, whatever they may be.

When a railroad company is indicted for willfully obstructing a highway, and the obstruction is one whose illegality is attributable to the manner in which its railroad has been constructed upon the highway; and, upon conviction, the judgment is so framed as to require an absolute removal of the constituent elements of the road-bed from the highway, and not to permit the company to abate the nuisance, or 'remove the obstruction,' by grading the highway to the surface of the railroad track, or by carrying the highway under or over the railroad, or by changing the line of the highway, or by carrying the railroad along and upon the highway on the surface of the latter, or in such other manner as not to obstruct it or prevent its use by the public, according as one or the other of these courses may, under the circumstances of the case, be proper,--it is erroneous, and should be set aside, and the cause remanded for a reformation of the judgment.

In the absence of a bill of exceptions, it will be assumed that the testimony was of such character as to sustain the verdict.

COUNSEL

Alfred Bishop Mason, for Palatka & I. R. Ry. Co., plaintiff in error.

The Attorney General, for the State.

OPINION

RANEY J.

1. This case is brought here by writ of error. There was no motion for a new trial, or in arrest of judgment, made until after the term. The motion so made was properly overruled. Such motions can not be made after the term. Section 1, p. 453, McClel. Dig.

It is unnescessary to say more in regard to the disagreement of counsel over their conversation or alleged verbal understanding as to when the trial in the circuit court should take place than that no agreement between parties or counsel, as to a trial of a cause, is of any effect before the court, unless the evidence of it is in writing, and subscribed by the party (or his attorney) against whom it is alleged, or is made in open court, and noted by the judge in his minutes. Circuit Ct. Com. Law Rule 43.

2. There is no bill of exceptions, and the only assignments of error to be considered relate to the record proper.

It is urged that the indictment does not accuse the defendant of any crime.

The statute (section 8, p. 428, McClel. Dig.) provides that 'if any person or persons within this state shall obstruct any public road or established highway by fencing across or into the same, every such person or persons who shall...