Illinois Central R. R. v. Commonwealth , 104 Ky. 362 ( 1898 )

JUDGE HAZELRIGG

delivered the opinion of tiif. court.

Upon the principles decided this day in the case of the Commonwealth against the present appellant, from Car-lisle county, the Circuit Court had jurisdiction to try the offense charged against appellant, viz., that of maintaining a common nuisance by obstructing a public highway. The. indictment in this case, however, differs materially from the one there under consideration. Here it is charged that the company “did unlawfully, wilfully, repeatedly, .continuously, unreasonably, and for long and unnecessary and unreasonable periods of time, and for longer than five minutes at any one time, allow, permit, and suffer its freight and passenger trains to stand and remain coupled and hooked together over and across the public road,” etc. The demurrer was properly overruled.

Further complaint is made that, because of some alleged irregularity in the return of the officer as indorsed on the summons, the court should have sustained appellant’s motion “to quash the process.” As the form of the process was entirely regular, and is the usual form, the motion to quash it was properly overruled. Had the motion been to quash the officer’s return, it might have been entertained, but the opportunity would have been afforded for correcting the return before quashing it. The further complaint is urged that while the indictment described the highway as the “Brandenburg road” and as “the Big Spring and Elizabethtown road where the appellant’s railway crosses said public highway near the town óf Vine Grove,” the proof disclosed that the point of the alleged obstruction was in fact within the limits of the incorporated town of Vine Grove. This variance, we think, is wholly immaterial so far as it is supposed to have misled appellant as to the exact locality of the crossing alleged to have been obstructed. The misdescription as such is insignificant. But while to obstruct a public highway, within as well as without a town or city, is a common law offense, and punishable as a nuisance, yet the highways without are under the control of the general laws and the County Courts, while within such limits they are within the control and supervision of the governing authorities of the town, and the special laws applicable thereto. There may be, and there usually is, in their charters and ordinances, a full regulation of the subject of obstructing the streets and public ways of towns and cities; and ordinarily they are so definite and specific as to leave no room to doubt that they supersede the common law punishment. We think, therefore, that the appellant was entitled to be informed in the indictment whether the point alleged to be obstructed was within or without the town or city limits. The variance was material and fatal, for the reason given, and judgment should have gone for the defendant. Reversed for proceedings in accordance herewith, and dismssal of indictment unless further proof may disclose the point of obstruction to have been without the town limits.