§ 730. Obstructing highways.—Obstructing a public highway is indictable as a nuisance. The way obstructed must

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be public. It is not necessary that the road should have been accepted by the authorities if the public have a right to pass, but it must appear that the highway was acquired by the authorities in a legal manner, or was dedicated by the owner, or that the public had a prescriptive right by user.* It does not make the offense less that the public must pay toll to pass over the way. The same rule applies to the obstruction of bridges, harbors' and navigable rivers.

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1 State v. Berdetta, 73 Ind. 185, 38 Am. Rep. 117; State v. Miskimmons, 2 Ind. 440.

2 Root v. Commonwealth, 98 Pa. St. 170, 42 Am. Rep. 614; State v. Randall, 1 Strob. (S. Car.) 110, 47 Am. Dec. 548.

3 Mills v. State, 20 Ala. 86; Commonwealth v. Wilkinson, 16 Pick. (Mass.) 175, 26 Am. Dec. 654, 1 Hawk. P. C. ch. 76; Co. Litt. 56a.

4 Mauck v. State, 66 Ind. 177; People v. Jones, 6 Mich. 176.

5 Commonwealth v. Wilkinson, 16 Pick. (Mass.) 175, 26 Am. Dec.

654; State v. McIver, 88 N. Car. 686.

6 In re Clinton Bridge, 10 Wall. (U. S.) 454, 19 L. ed. 969; Commonwealth v. Newburyport Bridge 9 Pick. (Mass.) 142.

7 State v. Wilson, 42 Maine 9; Rex v. Tindell, 6 Ad. & El. 143.

8 Thompson v. Androscoggin R. Imp. Co., 54 N. H. 545; State v. Narrows Island Club, 100 N. Car. 477, 5 S. E. 411, 6 Am. St. 618; Reg. v. Betts, 16 Q. B. 1022, 4 Cox Cr. C. 211.

It is not necessary that the obstruction be over the traveled part of the way, if passage is made less convenient. The owner of the way may be guilty of the offense, provided the public right is established.10

§ 731. What is an obstruction.-The placing on a highway and keeping thereon for a considerable space of time anything which obstructs or diminishes the public use is indictable.11 The following have been held obstructions: Digging a ditch or plowing across the way,12 allowing wagons to stand before a warehouse for an unreasonable time,13 keeping a boarding before a house for repair purposes an unreasonable time, 14 erecting posts or fences appreciably within the limits of the way,15 blasting in such a manner that passers are endangered,16 making excavations close to the way,17 placing goods for sale in the street, 18 causing crowds to collect therein, by shows, exhibitions, etc.,19 setting up near the highway objects calculated to frighten

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9 State v. Merrit, 35 Conn. 314; Commonwealth v. King, 13 Metc. (Mass.) 115.

10 State v. Sweeney, 33 Minn. 23, 21 N. W. 847; Mercer v. Woodgate, L. R. 5 Q. B. 26, 12 Eng. Rul. Cas. 573.

11 State v. Chicago, M. &c. R. Co., 77 Iowa 442, 42 N. W. 365, 4 L. R. A. 298 and note; Commonwealth v. Blaisdell, 107 Mass. 234; Reg. v. United Kingdom Elec. Tel. Co., 9 Cox Cr. C. 137, 12 Eng. Rul. Cas. 562.

12 Henline v. People, 81 Ill. 269; Kelley v. Commonwealth, 11 Serg. & R. (Pa.) 345; 1 Russ. on Crimes (9th Am. ed.) 485.

13 Rex v. Russell, 6 East 427, 2 Smith 424, 8 Rev. Rep. 506.

14 Rex v. Jones, 3 Campb. 230, 13 Rev. Rep. 797.

15 Zimmerman v. State, 4 Ind. App. 583, 31 N. E. 550; Sanders v. State (Tex.) 26 S. W. 62; Reg. v. Lepine, 15 L. T. (N. S.) 158; Reg. v. Lepille, 15 W. R. 45.

16 Booth v. Rome &c. R. Co., 140 N. Y. 267, 35 N. E. 592, 24 L. R. A. 105, 37 Am. St. 552; Reg. v. Mutters, 1 Leigh &. C. 491, 10 Cox Cr. C. 6.

17 Fisher v. Prowse, 2 Best & S. 770, 6 L. T. (N. S.) 711. 18 State v. Berdetta, 73 Ind. 185, 38 Am. Rep. 117; Davis v. New York, 14 N. Y. 524, 67 Am. Dec. 186.

V. Cunningham,

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19 People Denio (N. Y.) 524, 43 Am. Dec. 709; State v. Hughes, 72 N. Car. 25; Rex v. Sarmon, 1 Burr. 516.

horses,20 setting spring guns near it,21 extending the steps of a house into the highway,22 or erecting things overhanging it which endanger passers.23

§ 732. Intent and defenses.-Intent is immaterial in the offense of obstructing a highway,2 unless the indictment is under a statute for wilfully or knowingly obstructing a highway, when scienter must be alleged and proved.25

License may be a defense, as where telegraph posts are authorized by the proper authorities.26

Prescription because of the length of time the nuisance has been maintained is not a defense, for prescription does not run against the public.2

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§ 733. Maintaining nuisance in highway by municipality. -A municipality may be criminally liable for permitting a street to become so out of repair as to constitute a public nuisance.28

§ 734. Obstructing highway by railroad.-Unless authorized by a statute, it is a criminal nuisance for a railroad company to lay its tracks across a highway.29 If authority has been granted, a failure to put the highway back in good con

78 Va. 19; Wyman v. State, 13 Wis. 742.

26 Commonwealth v. Boston, 97 Mass. 555.

27 Commonwealth v. Tucker, 2 Pick. (Mass.) 44.

28 Ludlow v. Commonwealth, 147 Ky. 706, 145 S. W. 406, 39 L. R. A. (N. S.) 410; Elkins v. State, 2 Humph. (Tenn.) 543.

29 St. Louis, A. & T. R. Co. v. State, 52 Ark. 51, 11 S. W. 1035; Commonwealth v. Erie & N. E. R. Co., 27 Pa. St. 339, 67 Am. Dec.

dition,30 or keeping rails above the level of the crossing,31 habitually failing to give signals of passing trains,32 or unnecessarily obstructing a highway crossing by cars may be indicted.33 Statutory authority must be strictly pursued, but a certain degree of license may be allowed to a railroad company, because of public benefit.

§ 735. Obstructing or polluting waters.-Unless authorized by statute, the obstruction of navigable rivers by bridges or similarly is a criminal nuisance.34 It is also indictable at common law to obstruct the passage of fish in a nonnavigable stream.35 Diverting so much of the water of a stream as to hinder navigation is indictable.36 A wharf may be a nuisance,37 or the obstruction of public docks.38

A vessel sunk by accident so as to obstruct navigation is not a nuisance such as to render the owner indictable39 nor is a ferry wire stretched across a stream necessary which is for crossing of travelers and does not greatly obstruct the stream, 40 and the owner of adjoining lands may erect such structures as he pleases between high and low water mark, if he does not hinder navigation.11

30 State v. Portland, S. & P. R. Co., 58 Maine 46.

31 Paducah & E. R. Co. v. Commonwealth, 80 Ky. 147.

32 Louisville & N. R. Co. v. Commonwealth, 13 Bush (Ky.) 388, 26 Am. Rep. 205.

33 State v. Louisville &c. R. Co., 86 Ind. 114; Cincinnati R. Co. v. Commonwealth, 80 Ky. 137; State v. Norfolk &c. R. Co., 168 N. Car. 103, 82 S. E. 963, L. R. A. 1915B, 329.

34 State v. Narrows Island Club, 100 N. Car. 477, 5 S. E. 411, 6 Am. St. 618; Rex v. Stanton, 2 Show.

30. See also note to 59 L. R. A. 33 et seq.

35 Commonwealth v. Chapin, 5 Pick. (Mass.) 199, 16 Am. Dec. 386. 361 Hawk. P. C. ch. 75, § 11. 37 Rex v. Grosvenor, 2 Stark. 448, 20 Rev. Rep. 732.

38 Reg. v. Leech, 6 Mod. 145. 39 McLean v. Mathews, 7 Ill. App. 599; Rex v. Watts, 2 Esp. 675, 5 Rev. Rep. 766.

40 The Vancouver, Fed. Cas. No. 16838, 2 Sawy. (U. S.) 381; State v. Wilson, 42 Maine 9.

41 Zug v. Commonwealth, 70 Pa. St. 138.

§ 736. Other highway offenses.-One responsible for the repair of roads may be indicted for neglect to do so.12

Obstruction or interference with the operation of railroads is made criminal by statute in some states.43

It may be an offense when meeting another person on a highway to fail to drive to the right sufficiently to allow him to pass in safety, each being emitled to the portion of the road to the right of the center of the traveled portion.**

Statutes also frequently punish riding or driving on a sidewalk.

Racing on the highway, that is, engaging in a trial of speed of animals, is indictable, being dangerous to public safety.45 Wanton and furious driving which injures others is indictable under some statutes. There are many statutes and ordinances which set a speed limit for trains, vehicles, and automobiles in passing through towns and cities, or even anywhere on the highways, violation being punishable as a misdemeanor.

42 State v. Hogg, 5 Ind. 515; People v. Albany, 11 Wend. (N. Y.) 539, 27 Am. Dec. 95; State v. King, 25 N. Car. 411.

43 Mitchell v. State, 94 Ala. 68, 10 So. 518; Hodge v. State, 82 Ga. 643, 9 S. E. 676; State v. Hessenkamp, 17 Iowa 25; Weinecke v. State, 34 Nebr. 14, 51 N. W. 307.

44 Commonwealth v. Allen, 11 Metc. (Mass.) 403; Clark v. Commonwealth, 4 Pick. (Mass.) 125; State v. Collins, 16 R. I. 371, 17 Atl. 131, 3 L. R. A. 394.

45 Robb v. State, 52 Ind. 216; State v. Ellis, 6 Baxt. (Tenn.) 549; State v. Catchings, 43 Tex. 654.