4. On demurrer to a declaration, alleging that a railway company obstructed a public street adjoining the plaintiff's house, that they kept up dangerous fires, and did various other acts that made his residence unwholesome and uncomfortable, and that they did these things unlawfully, and with intent to injure him, it was held to be a good cause of action, as the court could not presume such acts to be lawful under the particular circumstances; but if the company claimed the right to do such acts at the time and place, it was incumbent upon them to show such right, by plea or otherwise.6

5. And it was held, that the slight but unavoidable obstruction of public navigable rivers by a railway company, under the authority of the state legislature, is a necessary evil, which must be borne for the sake of the public good, which demands it. That which would otherwise be a nuisance, if done under the authority of law for the public good, is justifiable. It has been held also, that grants to a railway company, or similar public work, which unavoidably cause obstruction to the navigation of a navigable river, are not to be regarded as per se a nuisance, but lawful.8

8

6. But such grants are to be construed strictly, and if built upon a plan which would occasion obstruction to the navigation beyond what the charter authorized, the works would be a nuisance. Every erection in a navigable river, without legislative permission, which obstructs navigation is a nuisance. 8 Soo, too, where a railway company, by a wrong construction of rence of, and by virtue of a contract with, the vestry of the parish, laid down in one of the streets of the city a double line of tramways on which omnibuses of a peculiar construction plied for hire, and these tramways were dangerous and inconvenient to the public, as the wheels of vehicles skidded when crossing the tramway, and horses putting their feet upon it were startled, this was held to be a public nuisance, even though these tramways were for the public conveyance generally. Regina v. Train, 2 B. & S. 640.

6 Parrot v. The C. H. & D. Railw., 3 Ohio St. 330. Where a person was engaged in blasting a stone quarry, and, by using an excessive charge of powder, caused a great quantity of stones to fall upon the public highway, and upon houses adjacent to the quarry and highway, he was held rightfully convicted upon an indictment which charged him with a nuisance to the highway. Regina v. Mutters, 1 L. & C., C. C., 491; s. c. 10 Cox, C. C. 6.

Attorney-General v. Hudson River Railw., 1 Stockton (N. J.) Ch. 526. • Newark Plank-Road Co. v. Elmer, 1 Stockton (N. J.) Ch. 754.

their act, locate their road where they are not authorized, it becomes a nuisance on every highway it touches in its illegal

course.9

7. Railways are not justified in building depots for freight or passengers within the limits of the public highway, or so near it that their trains must injuriously obstruct the public travel. The right of the public in the highway is paramount to that of the company, for all other purposes except that of transit.10

8. But it has been said by experienced judges, and with great reason, as it seems to us, that where a railway erect gates, or cause any other obstruction to a public or private way, by means of doing defectively or imperfectly what they had the legal right to do in another form, it is not competent for those who feel themselves aggrieved, or who are in fact so, to take the redress of their wrongs into their own hand, and forcibly remove the obstacle. They should apply to the proper tribunal for a mandamus, or other appropriate remedy.11

* SECTION III.

Indictment for Offences against Railways.

1. Railway tickets chattels. Railway pass n. 4. Loss of railway ticket. Negotiability subject of forgery.

of same.

2. Under the English statute, indictments for n. 5. Right of street railways to unobstructed obstructing railway carriages, or endan- track.

gering persons therein.

§ 227. 1. If one obtain a railway ticket from the company by false pretence, and thus is enabled to travel upon the railway, this is an offence for which an indictment will lie.1 And if such

• Commonwealth v. Erie & Northeast Railw., 27 Penn. St. 339; Same v. Vt. & Massachusetts Railw., 4 Gray, 22; Same v. Nashua & Lowell Railw., 2 Gray, 54; Same v. New Bedford Bridge, Id. 339, 345.

10 State v. Morris & Essex Railw., 1 Dutcher (N. J.), 437; s. c. 3 Zab. 360; State v. Vermont Central Railw., 27 Vt. R. 103. See also Commonwealth v. Nashua & Lowell Railw., 2 Gray, 54; Same v. New Bedford Bridge, Id. 339; Same v. Vt. & Mass. Railw., 4 Gray, 22; Gerring v. Barfield, 11 L. T. N. S. 270; s. c. 16 C. B. N. S. 597.

11 Ellis v. London & S. W. Railw., 2 H. & N. 424.

1

1 7 & 8 Geo. 4, ch. 29, § 53; Reg. v. Boulton, 17 Law J. (M. C.) 152; 3 Cox,

ticket be fraudulently taken it is larceny, although the ticket would have been delivered up at the end of the journey.2 The forging of a railway pass is an offence at common law, but the mere uttering of it is no offence, unless some fraud was actually perpetrated. "A railway ticket is a valuable chattel, and an indictment for obtaining it of one of the company's servants, by false pretences, is sustainable, although it is to be given up at the end of the journey; that does not prevent it, while of value to the holder, as enabling him to travel gratis, from being a chattel, the stealing of which, or obtaining by false pretence, and with intent to defraud the company, is an offence." 4

*2. Under the English statute, against doing "anything to obstruct any engine, or carriage, using any railway, or to endanger the safety of any person conveyed in the same," it is not necessary to allege, or prove, that the railway was constructed, or worked, under the powers of the act of parliament.5 It is Cr. Ca. 576. On an indictment for conspiracy for the sale and transferring of a railway ticket not transferable, it was held that the prisoners must be acquitted, unless there was a previous concert between them to obtain the ticket for the purpose of fraudulently using it. Regina v. Absolon, 1 F. & F. 498, per Wightman, J.

8

4

Reg. v. Beecham, 5 Cox, Cr. Ca. 181.

Reg. v. Boult, 2 Car. & K. 604.

Reg. v. Boulton, 2 Car. & K. 917, opinion of Parke, B., in Exch. Chamber. The newspapers speak of a case in the Common Pleas, in Ohio, where it has recently been decided that the loss of a railway ticket by a passenger falls upon the purchaser, the ticket being negotiable by delivery, any one could ride upon it who should produce and surrender it to the conductor; that the servants of the company might lawfully eject any one from their cars who did not surrender his ticket to the conductor, although he had paid his fare and procured the ticket, and lost it. But that they would, in such case, be liable for breach of duty as common carriers, to make good all loss which occurred to the passenger, by detention or otherwise, which is entirely at variance with the former portion of the decision. We should conjecture that the former part of the decision may be correctly reported, and that instead of the latter point the court may have held that the company are liable to refund the money after the ticket is recovered, not having been used, or possibly that the passenger might be entitled to pass in the cars without surrendering his ticket, in case of loss or mislaying the same, upon giving proper indemnity, by the deposit of the money until the ticket should be surrendered. In Reg. v. Fitch, 1 L. & C. C. C. 159, it was held that a turnpike toll-gate ticket is a receipt for money.

Reg. v. Bowring, 10 Jur. 211. An interesting case, involving the right of

enough to show that the respondent wilfully did the act complained of, and that it was of a nature to endanger the safety of persons upon the railway.5 And it is no defence in such case, that the respondent did not intend to do any injury.5 A person who throws a stone at an engine, or carriage, using a railway, may be indicted, under the latter clause of the section,5 for doing an act to endanger the safety of any person," &c.

street railways to an obstructed track, was recently decided in Massachusetts. It was here held that the driver of a heavily loaded wagon on the highway having one wheel in the track of a horse railroad established by the legislature, and moving at the usual rate of speed of such wagons, but slower than horse railroad cars usually move, is bound to turn off from the track at the request of the conductor of a car owned by the proprietors of the horse railroad, if there is room to do so, although it is usual and much easier to drive such wagons with one wheel in the railroad track. And if, by not so turning off for several hundred feet, he obstructs the passage of the car at its usual rate of speed, he is liable to indictment under the statute, prohibiting the wilful and malicious obstruction of the railroad, even if he did not enter upon their track with the intention of obstructing the cars, and continued thereon without intending to obstruct them, but merely for his own convenience. The court proceed upon the principle that a franchise to construct, maintain, and use a horse railroad over a highway authorizes the grantees to drive their cars at the rate of speed used for vehicles drawn by horses for carrying passengers, so far as this right can be enjoyed without preventing other vehicles on the highway from moving at their usual rate of speed. Commonwealth v. Temple, 14 Gray, 69. But under the English statute an intent to commit the act of obstruction was held necessary. Batting v. Bristol & Exeter Railw., 9 W. R. 271; s. c. 3 L. T. N. S. 665. And see Wilbrand v. Eighth Avenue Railw., 3 Bosworth, 314; McCarty v. State, 37 Miss. R. 411. Under the statute 3 and 4 Victoria, c. 97, § 13, one may be convicted of a misdemeanor for obstructing the line of a railway, although the railway had not yet been opened for passenger traffic, and no engine or car had yet been constructed. Reg. v. Bradford, 8 Cox, C. C. 309. And see Roberts v. Preston, 9 C. B. N. S. 208.

*CHAPTER XXXI.

TAXATION.

SECTION I.

Assessments upon Railway Works, and upon Stock, or Shares.

of a railway are not taxable separate from the road.

But erections of mere convenience, for profit, may be.

3. Depreciation of road by time to be taken 10. Or such as are without the limits of land

§ 228. 1. THE assessment of railways, in England, to the poor's rate, which is the chief parish rate there, is made upon the company, as an occupier of land, under the 43 Eliz., c. 2, which, by 6 & 7 Will. 4, c. 96, is required to be assessed upon the "net annual value."1 And by 3 & 4 Vict. c. 89, re-enacted from time to time, the assessment is required to be "in respect of his ability, derived from the profits" of such occupancy of land, or other property. Under these statutes it was held, that a railway company was to be rated according to the value of the land, as increased by the line of railway and buildings.2 And also that the company were properly assessed, for what a lessee could

1 But the mere possession of running powers over a railway does not render the company having such powers liable to pay rates on the line to the parish in which it is situated. Reg. v. Midland Railw., 13 W. R. 202; s. c. 11 L. T. N. S. 303.

2

Reg. v. Glamorganshire Canal Co., 3 El. & El. 186.