Northern Central Railway Co. v. Commonwealth , 1879 Pa. LEXIS 248 ( 1879 )

Mr. Justice Mercur

delivered the opinion of the court,

It is well recognised law, that an indictment will lie against a corporation, not municipal, for the creation and maintenance of a public nuisance: Reg v. Great North of England Railway, 9 Q. B. 315; Duter v. Troy Railroad Co., 2 Hill 629; Chestnut Hill Turnpike v. Rutter, 4 S. & R.. 6; Delaware Div. Canal Co. v. Commonwealth, 10 P. F. Smith 367. This indictment charges the plaintiff in error with having, unlawfully and injuriously, obstructed a public highway. The obstruction in question is in a turnpike, and caused by the manner in which the railroad crosses the same. The special verdict finds the mound, caused by the railroad crossing the turnpike, “amounts to a serious inconvenience and a dangerous obstruction to travel.” The mere construction of a railroad track across a public highway, in pursuance of law, is no nuisance: Danville Railroad Co. v. Commonwealth, 23 P. F. Smith 29. But it must be constructed in such a manner as “ not to impede the passage or transportation of persons or property along the same:” Act of 19th February 1849, Purd. Dig. 1220. The necessary running of trains across the highway is not the cause of complaint here; it is the construction of a permanent obstacle in the highway, which is “ a dangerous obstruction to travel,” and the maintenance of it there. Such an obstruction of a public highway is clearly a nuisance. It is contended, however, that a turnpike, constructed by a corporation, is not a public highway.

The main object and purpose of a-turnpike is to provide a public highway of a superior quality. That it is not a private road or way is very clear. It is not constructed under the supervision of municipal officers; yet it is by virtue of public authority, and for public purposes. It is for the use of every person desiring to pass over it, on payment of the toll established by law. It differs from a common highway in the fact that it is not constructed, in the first instance, at the public expense, and the cost of construction is reimbursed by the payment of toll imposed by authority of law. Its use is common to all who comply with the law. The same public annoyance and injury arises from its obstruction as if it was a common highway. Hence, in Lancaster Turnpike Co. v. Rogers, 2 Barr 114, it was said, that when the turnpike company ceased to use a building erected, in part on the turnpike, as a toll-house, it ceased to be there for a lawful purpose, and became a public nuisance. Common understanding and public policy unite in requiring us to hold that a turnpike is a public highway, in so far that an indictment will lie against one obstructing it, as for a public nuisance. It was so held in Commonwealth v. Wilkinson, 16 Pick. 175.

The Statute of Limitations runs not against the Commonwealth. Twenty-four years of continued nuisance create no presumption of a grant therefrom to maintain the same. Nor does the fact that the Act of Assembly gives the turnpike company a specific remedy for an injury to its rights, impair the separate rights of the Commonwealth. The owner of the fee of land over which a common highway passes may maintain trespass against one who deposits and maintains materials thereon: Lewis v. Jones, 1 Barr 336. Yet this in no wise bars the right of the Commonwealth to indict for the same act. So in the present case, the right of the Commonwealth to redress a public wrong is very clear. It is no sufficient answer to the wrong committed by the plaintiff in error to prove that it would require an expenditure of from $5000 to $8000, to so lower the bed of.the turnpike as to allow it to pass under the railroad. Whether that is the least expensive manner of removing the dangerous obstruction, we are not informed; but if it be, the sum is not so great as to absolve the railroad company from its duty of so making the crossing that it shall not endanger the reasonable passage of persors and transportation of property over the turnpike. The learned judge committed no error.

Judgment affirmed.