Philadelphia, Wilmington & Baltimore Rail Road v. State

Goldsborough, J., delivered the opinion of this Court: This case comes before us by appeal -from a judgment of the Circuit Court for Cecil County, in favor of the appellee upon an indictment charging the appellant with the erection and continuance of a bridge across iis railroad, which is alleged to be a nuisance. The indictment contains three counts: The first count charges that a certain railroad company under the name of the Delaware and Maryland Bail Boad' Company, was incorporated by the Act of 1831, ch. 296, with power to ¹⁶² construct a railroad therein described. This Act provided, that in constructing the road, whenever it was necessary to cross or intersect any established road or way, it should be the duty of the company so to construct their road as not to impede the passage or transportation of persons or property along the public road. That by a series-of Acts mentioned in the indictment, the above named company became merged in the appellant, and by the Act of 1837, ch. 30, it was enacted that the las-t named company should be responsible for all the engagements and liabilities of all the companies united by said Act.

That the Delaware and Maryland Rail Road Company in making an excavation for the bed of its road, intersected a public road described in the indictment, and made the excavation so deep as to impede the travel thereon. That to remedy the impediment, the railroad company constructed a bridge across the excavation to enable the public to use the road thus intersected. That after the erection of the bridge, it was suffered to become ruinous, broken and dangerous, sow that the citizens of Cecil County could not pass or rej)ass- without danger to their lives or the loss of their property. To this count, the appellant pleaded not guilty, and put itself for trial before the Court, and the appellee did likewise.

The Court upon this Gount rendered judgment for the appellant. The second count charges that the bridge so erected was-so' narrow that by reason thereof, the citizens of Cecil County were impeded in the use of the public road aforesaid, and was thus a nuisance. The third count alleges that the appellant unlawfully and unjustly did permit and suffer the said bridge to he and remain over said excavation so that the said public road was thereby obstructed, and the continuance of the bridge was therefore a nuisance. To the second and third counts the appellant pleaded that the said bridge was built by the Wilmington and Susquehanna Rail Road Company more than twenty years- ¹⁶³ before the presentment in this case and before the union of said corporation with the appellant, and that tbe said bridge was repaired by the appellant, in 1849, and that it has kept the same in repair ever since.

That the bridge from tbe time of its erection, bas been ton feet wide in tbe clear, and that it has been used and passed over for the period aforesaid, without any complaint until the finding of the presentment in this case. To this plea the appellee demurred, and the appellant joined issue on the demurrer. Judgment was rendered for the appellee on the demurrer, and from that judgment this •appeal is taken. In the argument before us the appellant properly insisted, that this Court (in view of the demurrer) is required to examino the whole record for the purpose of discovering