DocketNumber: No. 4238
Citation Numbers: 30 Colo. 345
Judges: Campbell
Filed Date: 9/15/1902
Status: Precedential
Modified Date: 7/20/2022
delivered the opinion of the court.
An information against defendant containing two counts was filed in the county court of Weld
Several alleged errors of the trial court are argued, but only one — the insufficiency of the first count of the information — is considered, for its dis-r position requires a dismissal of the. action. It is insisted by the attorney general that this count is based upon section 1357 Mills ’ Ann. Stats.; by defendant on section 3960, which, by necessary implication, operated as a repeal of the former. The former statute, inter alia, ordains'that: “If any person shall obstruct or injure or cause or procure to be obstructed or injured, any public road or highway, * * * so as to render the'same inconvenient or dahigerous to-pass,” he shall-, upon conviction, be fined, etc. - The latter declares that no person or corporation shall “cause waste water, or the water from any ditch, road, drain or flume, or other place, to flow in or upon any road or highway so as to damage the same. ”
Section 1357 was passed by the territorial legislature in 1861, and is incorporated in the criminal code and has not been expressly repealed.-’ Section 3960'was-enacted by the general assembly of-'1885
The importance .of this contention consists in the fact that if the proceeding is, under 1357, that section makes the obstruction of the highway a crime; while if it is under section 3960 the penalty imposed for a violation of ány of its provisions is made recoverable by a civil action of debt. Possibly section 1357 prohibits some acts not included in section 3960, and the earlier section may not be repealed in its entirety, even if, as to the same matters found in both, the later section by implication repeals the -earlier. But we are clear that for an obstruction of a highway which results in damage to the same ■caused by turning waste water, or the water from any ditch, road, lateral, flume, or other place, so that it flows in or upon any road or highway, the offense, if ever therein included, is now withdrawn from the provisions of section 1357, and is to be governed by, and comes under, section 3960; and all penalties therefor are to be recovered as provided by section 3963, namely, by an action in the- nature of debt. .
It would seem that in drafting the information, the district attorney had before him section 3960, and intended to state an offense thereunder, and that it was not then his purpose to-rely upon section 1357. For- in setting forth the facts which constitute the obstruction he employed the. very language found in section 3960. Were there any doubt about this, the uncertainty would be removed when we come to consider the evidence wherein it is shown that the overseer of the road district, in which this road is situate, notified defendant that he hád been guilty of a •violation of section 3960, and unless the obstruction was removed he would be proceeded against thereunder. .
It is further said that, even if section 3960 repeals section 1357, still at common law flooding of a highway is an offense, and that section 3963, which provides merely for a recovery of damages for the injury which the obstruction causes is not inconsistent with, and does not abolish the remedy in the nature of, a criminal proceeding for the same offense, as at common law, or an. action to abate the nuisance. We think that, in view of our various statutes on the subject, our general assembly intended the remedy in damages to be exclusive for this particular kind of obstruction, and that a criminal prosecution either under section 1357, or as at common law, will not lie.
If such an obstruction may still be abated as a nuisance, and if such a judgment could be entered in this kind of action, it is clear that the order of the trial court to that effect is wrong. It is nowhere alleged, or proved, that defendant built, or is the owner, or in control, of the pond or reservoir from which the Water backed up and covered this highway. Certainly the one whose property, would be destroyed
Tbe judgment is reversed and the cause remanded with instructions to«set aside tbe order abating tbe alleged nuisance, and to' sustain tbe motion to quash, and to dismiss tbe action.
Reversed.