The Charlotte journal. [volume] (Charlotte, N.C.) 1835-1851, 1844-06-07

81 fyDCth
ed il ppu4 Nor if I, be public !
hiohwav il IS lnI'cVable to obsiruct II, as
well when the Obstruction is made By the
Company or by one succeeding By purchase
to the rights OF the COMPANY, as when 1t is !
made by a ihlrd person. That The Road
is public highway | consider seitied by I
tie case Of the Raj. r. II. Company VS..
DAVIS. The nsh, Of the Legislature to
condemn private property Tor the purposes
Uf tic road, as the land over winch Il runs,
lie wood. Stone, gravel, and earth, required
for its construction aud repulr, can only be
derived from The fact that the road is tor
the public benefit, aHd is 10 be used as
public highway. To consiuer the Road as
mere private property, IS 10 suppose The
Legislature has taken the property oil Ger.
tam citizsns without their consent, ard
vested that property in certain other ciiI
zens for their individual benefit, whereas 10
consider II as public highway with Ger
tam Incidental private interests, fully sus-
ta.ns the authority of the Legislature to
make he condemnation. II is principle
OF the common Law which expands and
adipts itself to new cases Us they arse, that
whenever the public has a right, and that
right IS invaded, the offender IS liable TO IN
dcimen,, and 10 the case Of Rail Road
constructed like the one under consdera.
ton by Joint stock Company. although
the Company has a private interest, that
Interest is incidenfal-ls secondary, and
must be enjoyed so as not TO defeat the
paramount object, and one which is essen
tai 10 the creation and existence o. the
Road-fhe pubic right. If therefore the
Company should take Up the whole or part
Of the Road not with view TO repair or
TO replace Il with better materials, but With
view to obs,ruct aud hinder the public in
the use Of it, It would fall within the prin.
cpIe, and tue individuals offending would
be liable to Indictment This broad propo.
slilon is decisive Of the question. 10 ad.
vert 10 the several counts: The third count
is a. common Law for obsiructng public
highway upon this the Court decides
galast tie defendant. The second coun.
Is under the Statute Of 1888, which pro
yides a remedy for a wiiiul and malicious
injury 10 the Road. The facts do not show
TIA. The Defendant acted muliciouSly in The
sense 10 which the term is used IN the Sta.
tuie the Court upon this count decides ii
favor Of The Defendant. The frs, count i.
u1def clause IN The charter which pro,
yides remedy for wIiUl injury 10 The Road,
b. giving the Company The tight 10 re.
cover penalty, aud also making the Of
fender liable TO indictment. This remedy
vii, not reach the Company, or one actin Z
a. fbrr, Of ii { q
IS INSISTED that the Defendant having sue.
ceeded to the rights Of tue Company by
purchase al Sherlds sale, s not na5le Hs
under this charge. Waving all objections
TO the mode 10 which the sale was made,
the Court Is Of opinion that no ti!io passed,
because the supe5-tructure then IN use aud
constituting tue Road was not subject to
execution sale. Ii is clear that nothing
can be sold under execution which The deb
tor himself cannot sell. The Company may
sell the materials before they are aid down,
bu! a soog, as they become part Of the
Road, the pttltc right attaches, aud neilh-
er the Company nor a purchaser eau tear
up and remove that part OF public high.
way without violating the Law. Admit
tmg that the President and Directors il they
see proper 10 violate their charter and sub
iecl themselves TO indictment, have power
10 tear up the Road and can then pass utlt
TO tue materials, 4. by 10 means follows tina
ihe tide can pass upon the severance, sli
less that the Law will lend It's ard, and pas
tile by q Judicial sale 10 properly While
the debtor canuot s.ll without being llabI
to Indictment, aud which ia this Iusiaue
The Company cannot sell without yio!aliu
ITS duty 10 Is creator, aud thereby iori5ii
ing Ito existence.
Il IS SAID that the Company having in
Cured debts, will not BY the principles {
our Law be permitted TO hold pfopert
which creditors cannot reach. The Con
pany at the time Of lis creation, agreed +
perform certain services to the public at
ter IT. creation It incurred liabilities TO Ia
dtrlduats ; as 10th cannot DO discharged
the right Of the public must be preferred
because il IS FIRST in time and first 10 in
porlsuce, aud because tho individuals VII,
gave credit dad so "ith full kuosledg
thar the Company had this pubic duty i
perform, and one claiming under a credi,o
has no right TO complain because be is 10
permitted 10 do that which would proven
ihe performance OF this public duty. Tn
Court therefore upon the first count ais
decides agaius, the Defendant.
The Defendant IS fined the sum Of TWEEN
ty-hye dollars, AID viii be- in custody uuiI
the fine and costs ara paid. A srnaH fn
IS imposed because / am satisfied Mr.. Rive
acted with The advice Of counsel in the az
ser'lon Of what he believed right, aud
have no reason to apprehend repetition
Of tho offence.
RICHMOND ". PEARSON.