State v. Chicago, Burlington & Pacific Railway Co.

• Decision Date: 25 April 1884
• Citation: 19 N.W. 299,63 Iowa 508
• Parties: THE STATE v. THE CHICAGO, BURLINGTON & PACIFIC RAILWAY COMPANY
• Court: Iowa Supreme Court

19 N.W. 299

63 Iowa 508

THE STATE v. THE CHICAGO, BURLINGTON & PACIFIC RAILWAY COMPANY

Supreme Court of Iowa, Dubuque

April 25, 1884

Appeal from Jasper District Court.

THE defendant was indicted and convicted for obstructing a highway, and appeals to this court.

REVERSED.

R. A Sankey, for appellant.

Smith McPherson, Attorney-general, for the State.

OPINION

BECK J.

I.

The indictment is in the following language:

"The grand jury of the county of Jasper, in the name and by the authority of the State of Iowa, accuse the Chicago Burlington & Pacific Railroad Company of the crime of obstructing a public highway, committed as follows:

"The said defendant, on the 1st day of March, in the year of our Lord one thousand eight hundred and eighty-two, in the county aforesaid, then and there being a company organized and doing business within the state of Iowa, under and by virtue of the laws thereof, did willfully and maliciously dig, plow up and scrape the public highway, and did throw up a high embankment of earth, and dig out and make a deep excavation across, along, in and upon the public highway at a point where the said railroad crosses the said highway on the east side of section No. 21, in township No. 79 north, of range No. 18 west, in said county, thereby wholly obstructing and hindering the free use of said highway by the public, contrary to law."

A demurrer to the indictment, on the ground that it does not allege facts which constitute an offense under the laws of the state, was overruled. Upon a trial, a verdict of guilty was had, and judgment rendered thereon. The demurrer, in our opinion, ought to have been sustained. As the question arising upon the decision of the court below is decisive of the case, others discussed by counsel need not be considered.

II. Code, § 1262, provides that a railway corporation "may raise or lower any turnpike, plank road or other highway, for the purpose of having its railway cross over or under the same; and in such case said corporation shall put such highway, as soon as may be, in as good repair and condition as before such alteration at such place of crossing."

Under this section, it is lawful for a corporation to construct its railway across a highway. In doing so, it could lawfully construct an embankment and dig an excavation, the very acts alleged in the indictment as constituting the offense. There would be no violation of law, if the highway should be put in good repair as required by the...