State v. Minneapolis & St. L. Ry. Co.

CourtUnited States State Supreme Court of Iowa
Citation88 Iowa 689,56 N.W. 400
Decision Date04 October 1893


Appeal from district court, Webster county; S. M. Weaver, Judge.

Indictment for nuisance in obstructing a highway. Plea of not guilty. Verdict of guilty. Sentence imposed. Defendant appeals.R. M. Wright, for appellant.

John Y. Stone, Atty. Gen., and W. S. Kenyon, for the State.


1. The indictment in this case charges the defendant with wrongfully and willfully obstructing and incumbering a certain highway known as the Peterson No. 2 Road,” in Webster county, Iowa. To this indictment the defendant pleaded not guilty. It appears that in 1880 defendant built its railway track across this highway. In so doing it placed it about two feet above the surface of the ground. Immediately to the east of its track, and on this highway, defendant made an excavation about six feet deep, so that travelers on the highway coming from the east would be prevented from crossing the railroad by reason of the hole made by the excavation, and in coming from the west on the highway the two-feet rise would prevent crossing the railroad. The highway has been in this condition ever since the railroad was built, and has never been traveled. Since June 29, 1888, the defendant has been in the hands of, and operated by, a receiver. The indictment was found on December 1, 1890.

2. It is claimed that, even if the highway was a legal one, the evidence does not show that it was obstructed by defendant. We need not set out the evidence. It is conclusive as to the obstruction of the highway, and it is without conflict.

3. The claim last above referred to is based in part upon the fact (which was not disputed) that since June 30, 1888, the defendant's road has been operated by a receiver. The court expressly instructed the jury that the defendant could not be convicted for any obstruction erected or maintained over or upon the highway in question during the time its business and property had been in the hands of a receiver. Under the charge the jury were limited in their inquiry as to the obstruction of the highway to the time between December 1, 1887, being three years prior to the finding of the indictment, and June 30, 1888, the date when the receiver took possession of the road. The instruction was proper, and under it and the evidence the jury must have found that the obstruction was erected or maintained by defendant before it passed into the receiver's hands. The evidence, without conflict, sustained such a finding.

4. Error is assigned on the giving of the fifth instruction by the court, which says: “If, then, you find from the evidence, beyond a reasonable doubt, that at any time during the three years prior to the finding of this indictment, and before the appointment of a receiver, that is, between December 1, 1887, and June 30, 1888, the defendant obstructed the public highway known as the Peterson Road No. 2,” in said county of Webster, or by erecting and maintaining over and upon said road a high embankment by digging or excavating ditches across the same, and that said obstruction was not a mere temporary interruption of the use of the highway, necessarily occasioned by the building or construction of the railway, then you should return a verdict of guilty.” It is argued that the words “erecting and maintaining” used in the instruction limit the inquiry of the jury to such obstructions as the defendant erected and maintained within the time set forth in the instruction, and it is said the verdict is contrary to this instruction, as the evidence clearly shows that no such obstructions were erected or made within the time mentioned, but were erected when the railroad was built. The instructions must be construed together. It is likely that the court intended to use the conjunction “or,” instead of “and,” so that the sentence would read “erecting or maintaining.” This view is supported by the fact that in the fourth instruction the jury are told that the defendant could not be convicted for any obstruction “erected or maintained” upon or over the highway while defendant's road was in the hands of a receiver. In the seventh instruction the court, in defining what character of an obstruction would constitute a nuisance, says: “And if, after a reasonable time has elapsed for the completion of such construction, the railway company fails, neglects, or refuses to furnish and maintain a reasonably safe and convenient crossing, it will become liable for erecting or maintaining a nuisance.” The same matter is referred to in other instructions, from which it is plain that the jury must have understood that the defendant would be guilty if it, during the time mentioned, willfully maintained the obstruction, even though it had been erected years before. Viewing the instructions as a whole, the meaning was clear, and there was no error in them.

5. Counsel for appellant filed an amendment to his motion for a new trial, alleging, among other grounds, newly-discovered evidence material for the defendant, which it is alleged could not, with reasonable diligence, have been discovered and produced at the trial. This ground of the motion is supported by the affidavit of Mr. Wright, wherein he swears: “I am the attorney for the defendant, the Minneapolis & St. Louis Railway Company, and was such at and prior to the time of the trial of the above-entitled cause; that just prior to the trial of the cause I went into the office of the auditor of Webster county with the intention of examining the papers pertaining to the Peterson No. 2 road, including the road petition, the bond, the commission, the report of the commissioners, the orginal notice, the notice to appraisers, and the report of the appraisers; that, on my going there, diligent search was made for the said papers, and they could not be found, and I was not able to find out where they were, nor what had become of them, nor even if they were in existence or not, and I did not know where they were, nor whether they were in existence, and I had no copy of them.” The affidavit then shows that affiant did not know the contents of these papers; that he has since found them, and attaches them to his affidavit; that they show that the notice provided by law was not given, and other facts that need not be recited. While the newly-discovered evidence is made a ground for a new trial in the motion, there is no assignment of error to the action of the court in overruling the motion on this ground. Even if error had been assigned, it would not avail defendant. The facts set forth in the affidavit show no diligence on its part. The indictment was returned December 1, 1890; the trial began December 4, 1891. Though over a year intervened between...

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