State v. Western North Carolina Railroad

Merrimon, J., (after stating the facts). The grounds of defence insisted upon are technical and unfounded. The defendant is indicted for obstructing “ a certain public road and common highway.” Having pleaded not guilty, its counsel insisted on the trial that the State had not proven that it was a corporation. This was unnecessary, because by its plea of not guilty it admitted its corporate existence and identity by the name specified in the indictment. " But if this were not so, there was abundant evidence of its corporate existence. The charter authorizing such a company was put in evidence, and there was other evidence that went to prove that such a company was organized under this charter — that it had officers, a place of business, a railroad, transported persons and freight over its road and held itself out to the world as a corporation by the name specified. Such evidence, was competent, certainly, as against the defendant, and sufficient, if believed by the jury. It was further contended that there was no evidence of such a public road and common highway as that described in the indictment. The State put in evidence the charter of “ The Buncombe Turnpike Company,” granted at the session of the General Assembly of 1824, (2 Rev. Stats., p. 418). That charter authorized the organization of a corporation *608 by that name, with power to construct and establish a public turnpike road, and the ninth section thereof provides: “ That the said road, with the improvements which shall be made thereon in pursuance of this act, rhall be forever thereafter taken and considered as a 'public highway, free for the passage of all persons and animals, and carriages of every description, on the payment of tolls imposed by this act,” &g. It further provided, “That all hands liable to work on roads in the county of Buncombe, residing within two miles on either side of the road, from the Tennessee line to the top of the Saluda mountain, shall be liable to do six days work in each and every year on the said turnpike road, under the direction of,” &c. The company was authorized to collect tolls as allowed for only thirty-nine years, but it was not contemplated that the road should, at the end of that time, cease to be a public highway; on the contrary, it was intended and provided that it should thereafter “forever” be such a highway,to be kept in repair bj the hands so liable to work on it, and as might be otherwise, in the course of time, provided by legislative authority. It was in evidence that such a company was organized, that it constructed the highway intended by the charter, that this road had been in constant use a great number of years, was still in use, and that the road specified and described in the indictment was a section or part of that road. This part of the road has never been abolished or discontinued as such a highway by statute or otherwise. The Statute (Acts 1850-51, chap. 147), incorporated the “Asheville & Greenville Plankroad Company,” and this company was authorized to occupy and use the turnpike road mentioned above in the way and on the terms prescribed, but this statute did not, nor did it purport, to discontinue the road as a public highway. Indeed, it expressly provided that the road snould be “ a public highway,” and that the *609 Corporation should continue for fifty years. The statute last cited provides, that it “shall be regarded as a public act,” and the courts must therefore take judicial notice of it. But the statute (Pr. Acts, 1866, chap. 52), abolished “The Asheville & Greenville Plankroad Company,” and restores “The Buncombe Turnpike Company,” in name and authority, and this company lias ever since then been recognized and treated as such company, by the courts and the legislature. State v. McDowell, 84 N. C., 798; Acts 1866-7, ch. 114; Acts 1869-70, ch. 129. It appeared on the trial, that “The Buncombe Turnpike Company,” or certain of its officers, undertook three or four years ago, to surrender its road and franchises to the commissioners of the county of Buncombe. The defendant contended that the company thus abandoned its road, and the county commissioners could not treat and make it a ¡public highway, because it had not been established as such, after it had been abandoned, &c. “The Buncombe Turnpike Company” had no authority to thus abandon its road and surrender its corporate franchises. Such act on its part, in any view of it, was nugatory and void. It could only surrender its franchises to the State, in some way authorized by law. It remains a company, and answerable according to law. If it failed to keep the road in repair, this did not render the road less a public highway, and any attempt to abandon it could not have such effect. The road’is made a highway “ forever,” and this implies that it is and must be such, until the Legislature shall otherwise direct and provide. The road was established, has continuously remained, and still remains a highway, and it so appeared on the trial. So that the numerous points raised, and instructions asked for and refused by the Court in respect to the character of the highway obstructed, were unnecessary, groundless and outside of any proper view of the case before the Court. It did *610 appear that there was a highway as charged, constituted and established by legislative authority. It is too plain to admit of serious debate, that the defendant liad not the shadow of authority or right to keep its cars standing across the highway mentioned, for from fifteen minutes to three and a. half hours, as some of the witnesses testified it did do, and until in the course of such business it could unload its cars of freight at its depot near the highway, and thus prevent the passage of persons traveling on the highway. There is nothing in its charter that in terms or by the remotest implication gives such right, nor is it conferred by any general principle of law. Railroad companies have no right to obstruct public highways over which their roadway passes. Th ev must cross th em as promptly as the nature of their trains will, in the orderly course of passage, allow. There is nothing in the nature of their business that renders a different rule necessary or tolerable. What the defendant did was unlawful, a criminal Anolation of the law, and an arbitrary exercise of power, not applying harsher terms. The defendant was indictable for the offence as charged. While railroad corporations, and corporations generally, are not capable of committing offences, a necessary quality or ingredient in which is the criminal intent, still they axe indictable for such acts of misfeasance, as constitute nuisances, without regard to the intent. Ang. & Ames. on Corp., §§394-396; Mor. on Pr. Cor., §94; 1 Bish. on Cr. Law, §505. We have not adverted to several of the alleged errors ■assigned, because they have reference to immaterial matters. What we have said disposes of all that were in effect material. It is unnecessary and useless to go further. We are of opinion that the judgment should be affirmed, ■and to that end let this opinion be certified to the Superior Court. No error. Affirmed.