Year: 1871




ings.


The Supreme Court of this State has recent
ly delivered an opinion in this matter, in the
case of the State VS.. the P. S. & P. Railroad
Company, which opinion propose briefly to re-
view, as it affects the right Of 10000 citizens of
Portland, and 10000 outside of it. to come and
go over Portland Bridge without obstruction, as
also the right of citizens over other railroad
crossings entering this city The opinion was
delivered by Tapley, j., four other judges con-
curing, and three dissenting 1 quote from the
opinion:


''This is an Indictment against the defendant
company for erecting and maintaining I!ui-
sance, by laying and putting down anu uslls
certain tracks, with iron rails across anu oNsl
highway situate in Portland, aoout siA.S ;1 leH1
south of the place where the man track ol saio
railroad COMPANY crosses said highway Sec
tio1f15. of chap. 81, r. S., provides that rail-
roads NAV cross highways IN the line OF the
road but the conditions ana n manner OIL cross
Co1ntv Commissioners, and crossings not SO
nooda are to be regarded as nuisances and may
be so treated
This statute upon the provisions of which
this Indictment was drawn) makes that nui-
sance which was not one under any other pro-
vision of law. Its object was to secure the ac-
tion of the County Commissioners in certain
cases. Want of such action alone constitutes
the nuisance. The track and it's use may have
none of the elements of nuisance at common
law, or nuisance as defined by chap. II, of the
r. s., if this action is wanting, it is under this
chapter a nuisance If this act is not wanting,
no matter what the character of the erection or
use, it is not under this statute nuisance. In
proceeding under this act it is the material in
qulry.


To bring the case within the provisions of this
statute it must appear that the railroad crosses
in a manner not determined by the County Com
mssoners. No such allegation appears in the
indictment in this case. Without it it is fatal
ly defective. 1t is the material matter, without
which the act has necessarily no more of the
element of nuisance than of assault and bate
ry, &c


We have copied the substantial part of the
opinion, and now let us examine 1t. lst Ihe
| Indictment was not drawn under sect. Is, chap.
| 81, r. S.. as stated by the Court, but under
| chap II, defining nuisances. I'd, The Court
| says the Indictment in this case should charge
that defendant did notiobtain the consent of the
County Commissioners to lay tracks, &c, thus
requiring the prosecution to allege and prove
negative. This is contrary to the rules of plead.
ing and reason, and law is said to be the per-
fection of human reason. This was matter
for the defence to plead affirmatively, but in
this case defendants never obtained the consent
of the County Commissioners to lay the three
tracks complained OF, and, therefore, could not
plead it, and it had no practical bearing in the
case, albeit the Court switched off of the main
track here, on this side issue, so that the de-
fendant went through unscathed.


But the great error of the court is in assert
ing the doctrine that if the county commission
ers authorize the laying railroad track across
public highway, 1t cannot be a nuisance;
and in requiring every Indictment VS.. a rail
road for nuisance in crossing a public high
way to allege that the same was done without
| the approval of the county commissioners, ac-
| cording to sect. Is, chap. 81, r. S. The action
of +ba ntxyn mo la lat
| not a nuisance, which is nuisance in itself
Public highways are coeval with civilization and
existed centuries before railroads were dreamed
of, and no legislation can deprive them of their
material rights, any more than the legislature
could enact that in a neighborhoOd where there
| is one rich man and several poor neighbors, the
| latter may apply to the county commissioners
| for leave to divide among them the property of
| the rich man so as to equalize all in the manner
| prescribed by said commissioners. Such law
would be unconstitutional and void because it
| strikes at the very foundation of society, which
| should secure to every man the rewards of his
own industry So in this case, no legislation
| can deprive public highway of its inherent
| rights, as the court asserts.


| We think the court errs in saving that defen-
| dant could no more be convicted of a nuisance
under this Indictment than of assault and bat
terry Let us carry out this idea 1t is the law that
where one person assaults another, the latter
may use sufficient violence to repeal the assault
it even though he take the life of the assailant if
be necessary, in order to preserve his own. So in
the case of this highway which existed long be-
fore the P S. & p railroad was built or thought
Of Said railroad struck at this highway three
deadly blows in laying down the three tracks com
planned Of before this highway raised a hand in
self-defense and yet, by law it may take the
life of the assaiant if necessary to preserve it's
own. It is in itself inanimate, but really ami
mate with the tide of human life which daily
| ebbs and flows over it,


To conclude then, the indictment in this case
is good because it charges nuisance both at
common law, and by statute. Said Indictment
charging that the nuisance here was against the
peace of the State, and the form of the statute
Practically speaking, there seems but one prop
| er way for railroads to enter cities where they
cross the public highway, ON bridges or with
excavation, or tunnels at such distance
above or below the highway as not to obstruct
| travel thereon II TT IT