these circumstances will afford the adjoining property owner no claim for damages occasioned by the destruction of the obstructions removed or their removal.973 Public authorities may also, in the case of a fall of a natural obstruction, for example sleet or snow, direct its removal by adjoining property owners, but the exercise of this power will be governed by the principles in respect to the passage of legislation. Ordinances or regulations adopted for this purpose must be reasonable to be valid.974 line has been lawfully given. Dodd v. Consolidated Traction Co., 57 N. J. Law, 482, 31 Atl. 980. A company authorized by the city to erect trolley wires has the right to top the branches of trees when it is reasonably necessary for the pas sage of its wires. Young v. Crane, 68 N. J. Law, 453, 51 Atl. 482; Town of Wheatfield v. Shasley, 23 Misc. 100, 51 N. Y. Supp. 835. Trees lawfully planted and maintained within a highway are not obstructions within N. Y. Laws 1890, c. 568, § 105, which authorizes highway commissioners to remove obstructions or encroachments on highways on notice to the adjoining landowner. Chase v. City of Oshkosh, 81 Wis. 313, 51 N. W. 560, 15 L. R. A. 553. But see City of Atlanta v. Holliday, 96 Ga. 546, 23 S. E. 509, where injunction against removal of trees was granted. Crismon v. Deck, 84 Iowa, 344, 51 N. W. 55, where, under peculiar facts, a road supervisor was enjoined from removing shade trees and a hedge within the limits of a highway. Evans v. Board of Street Com'rs, 84 Hun, 206, 32 N. Y. Supp. 547. An injunction will lie against the threatened removal of shade trees growing in a city street by street commissioners without its having first been determined under the statute that the trees proposed to be removed are detrimental or interfere with the full and free use of the street. See, also, § 911, post. 973 Castleberry v. City of Atlanta, 74 Ga. 164; Wilson v. Simmons, 89 Me. 242, 36 Atl. 380; Murray v. Norfolk County, 149 Mass. 328, 21 N. E. 757; Phifer v. Cox, 21 Ohio St. 248; Chase v. City of Oshkosh, 81 Wis. 313, 51 N. W. 560, 15 L. R. A. 553. But see Clark v. Dasso, 34 Mich. 86, where it is held that the law favors the planting and preservation of shade trees in public streets when they do not constitute actual obstructions; that trees in the highway are the property of the abutting owner and if they encroach upon the highway and must be removed, he has the right and must be afforded a reasonable opportunity to transplant them as living trees elsewhere. See, also, as holding the same, Stretch v. Village of Cassopolis, 125 Mich. 167, 84 N. W. 51, 51 L. R. A. 345. Village of Lancaster v. Richardson, 4 Lans. (N. Y.) 136; Town of Wheatfield v. Shasley, 23 Misc. 100, 51 N. Y. Supp. 835. Shade trees lawfully planted in a highway can only be removed by an appropriate proceeding to condemn them with compensation to their owners. 974 Holtzman v. United States, 14 App. D. C. 454; City of Boulder v. Not only is the power commonly possessed by public authorities. to effect a removal or abatement of obstructions and nuisances but the rights of the public are almost universally guarded in all states against the connivance or laxity of public officials by the passage of statutes which make the act of creating an obstruction or committing a nuisance a crime or a misdemeanor 975 and provide Niles, 9 Colo. 415; Michigan City v. Boeckling, 122 Ind. 39; Union R. Co. v. City of Cambridge, 93 Mass. (11 Allen) 287; Inhabitants of Clinton v. Welch, 166 Mass. 133, 43 N. E. 1116; Hubbard v. City of Concord, 35 N. H. 52; City of New York v. Brown, 27 Misc. 218, 57 N. Y. Supp. 742; Village of Carthate v. Frederick, 122 N. Y. 268, 25 N. E. 480, 10 L. R. A. 178. 975 Howard v. State, 47 Ark. 431, 2 S. W. 331. A statutory proceeding is not necessarily an exclusive remedy. St. Louis A. & T. R. Co. v. State, 52 Ark. 51, 11 S. W. 1035. Obstructing a highway may be made a misdemeanor. State V. Holman, 29 Ark. 58. To obstruct a public highway is indictable at common law. Sweeney v. People, 28 Ill. 208; Henline v. People, 81 Ill. 269; State v. Baltimore O. & C. R. Co., 120 Ind. 298, 22 N. E. 307; State v. Kowolski, 96 Iowa, 346; Com. v. Wilkinson, 33 Mass. (16 Pick.) 175; Vicksburg & M. R. Co. v. State, 64 Miss. 5, 8 So. 128. Miss. Code, § 2871, contemplates a positive obstruction to a highway and not a mere omission to repair. State v. Bradley, 31 Mo. App. 308; Beaudean v. City of Cape Giradeau, 71 Mo. 392; Com. v. Capp, 48 Pa. 53; State v. Louisville & N. R. Co., 91 Tenn. 445, 19 S. W. 229. A railroad is liable to indictment for obstructing a highway. Parsons v. State, 26 Tex. App. 192, 9 S. W. 490. The obstructing must be willful, to constitute an offense. Crouch v. State, 39 Tex. Cr. Rep. 145, 45 S. W. 578. That one acted on the advice of attorneys is no defense in a criminal prosecution for obstructing a road. Ward v. State, 42 Tex. Cr. Rep. 435, 60 S. W. 757; Dyrley v. State (Tex. Cr. App.) 63 S. W. 631. In a prosecution for obstructing a road, the use of the word "willfully" is erroneous. State v. Troy & B. R. Co., 57 Vt. 144; State v. Monongahela R. Co., 37 W. Va. 108, 16 S. E. 519. A failure to restore a highway, as required by law, by one given the right to occupy it, is an indictable offense under Code, c. 43, sec. 45. State v. Dry Fork R. Co., 50 W. Va. 235, 40 S. E. 447. It is not necessary in an indictment against a railroad company for obstructing a public highway to aver that it had no license to occupy the road. 976 State v. Lemay, 13 Ark. 405; Moll v. Town Pickaway, 14 Ill. App. 343; State v. Hunter, 68 Iowa, 447; Rankin v. State, 25 Tex. App. 694, 8 S. W. 932. A penalty is necessary to the validity of a criminal statute relative to the obstruction of a highway. 977 penalties for a violation. It is scarcely within the scope of this work to discuss at any length the principles of criminal law, but it can be said with reference to this particular question that the statute which creates the offense is to be strictly construed, the indictment must conform to it,978 the descriptions of a highway in an indictment or other formal paper should be precise, definite and certain," 979 and the character of the highway or public ground be established as a public one." To constitute an offense in some 980 977 Johnson v. State, 32 Ala. 583; Malone v. State, 51 Ala. 55; State v. Robinson, 52 Iowa, 228; People v. Young, 72 Ill. 411; Louisville & N. R. Co. v. Commonwealth, 16 Ky. L. R. 68, 26 S. W. 536; Com. v. Illinois Cent. R. Co., 20 Ky. L. R. 606, 47 S. W. 258; Com. v. King, 54 Mass. (13 Metc.) 115; State v. Atherton, 16 N. H. 203; Lydick v. State, 61 Neb. 309, 85 N. W. 70. Sufficiency of indictment construed. McClanahan v. State, 21 Tex. App. 429, 2 S. W. 813; Guthrie v. State, 23 Tex. App. 339, 4 S. W. 906; Watson v. State, 25 Tex. App. 651, 8 S. W. 817; Dyerle v. State (Tex. Cr. App.) 68 S. W. 174. But see State v. Turner, 21 Mo. App. 324. 978 Hoadley v. People, 23 Ill. App. 39; Jeffries v. McNamara, 49 Ind. 142; State v. Middlesex & S. Traction Co., 67 N. J. Law, 14, 50 Atl. 354; Conner v. State, 21 Tex. App. 176; State v. Roanoke R. & Lumber Co., 109 N. C. 860, 13 S. E. 719. 979 Alexander v. State, 117 Ala. 220, 23 So. 48; Patton v. State, 50 Ark. 53, 6 S. W. 227; State v. Lemay, 13 Ark. 405; Palatka & I. R. R. Co. v. State, 23 Fla. 546, 3 So. 158. The allegation in an indictment is sufficient when it describes the road as "a common highway, in Putnam County, made and laid out for the people of this state to go, return and pass at their free pleasure and will, on foot, on horseback, and in vehicles." State v. Stewart, 66 Ind. 555; Varden v. Ritchie, 86 Mich. 197, 48 N. W. 1085; State v. Pullen, 43 Mo. App. 620; Peterson v. Beha, 161 Mo. 513, 62 S. W. 462. The same rule also applies to a judgment restraining defendant from obstructing a highway. State v. Crumpler, 88 N. C. 647; State v. Roanoke R. & Lumber Co., 109 N. C. 860, 13 S. E. 719; McClanahan v. State, 21 Tex. App. 429; Skinner v. State (Tex. Cr. App.) 65 S. W. 1073. A variance, however, may be immaterial. Wilson v. Hull, 7 Utah, 90, 24 Pac. 799. A decree restraining the obstruction of a road is not erroneous because it merely describes the road as being "on the line or between two sections." But see State v. Finney, 99 Iowa, 43, 68 N. W. 568; Matthews v. State, 25 Ohio St. 536; State v. Hume, 12 Or. 133. 980 United States v. Schwartz, 4 Cranch, C. C. 160, Fed. Cas. No. 16,237; State v. Trove, 1 Ind. App. 553; State v. Dubuque & S. C. R. Co., 88 Iowa, 508; Gedge v. Com., 72 Ky. (9 Bush) 61; State v. Beeman, 35 Me. 242; State v. Price, 21 Md. 449; People v. Jackson, 7 Mich. 432; State v. Cunningham, 1 Mo. App. Rep'r, 361; State v. Proctor, 90 Mo. 334, 2 S. W. 472; Golahar v. Gates, 20 Mo. 236; State v. Bald $832 ITS CONTROL AND USE. states it is necessary that the act should have been willful. This The evidence must conform condition is, in these cases, a necessary element,981 but otherwise if the statutes do not so provide.982 to the indictment and the offense must be proven beyond a reasonable doubt.983 882. Public highways or grounds must be legally established or acquired. The power of the public authorities to remove obstructions or abate nuisances in public highways and grounds is limited not only ridge, 53 Mo. App. 415; State v. Commonwealth v. Dicken, 145 Pa. 981 Savannah F. & W. R. Co. v. 645; Trice v. State, 17 Tex. App. 982 Com. v. Switzer, 134 Pa. 383; 983 State v. Dubuque & S. C. R. v. State, 23 Tex. App. 333, 4 S. W. by statutory restrictions or provisions, if these be found, but through the existence of the well known and recognized principle that to have jurisdiction it must be first established that the property over which an authority or power is sought to be exercised has been legally acquired and for the public uses and purposes urged.984 It must affirmatively appear, therefore, to sustain proceedings either criminal or civil in their character in respect to obstructions or nuisances in public highways or grounds, that 984 Whaley v. Wilson, 120 Ala. 502, 24 So. 855; Reed v. City of Birmingham, 92 Ala. 339; Shepherd v. Turner, 129 Cal. 530, 62 Pac. 106; People v. Goodin, 136 Cal. 455, 69 Pac. 85; Patterson v. Munyan, 93 Cal. 128, 29 Pac. 250; Town of Kent v. Pratt, 73 Conn. 573, 48 Atl. 418; Glaze v. Bogle, 97 Ga. 340, 22 S. E. 969; Id., 105 Ga. 295, 31 S. E. 169; Carlisle v. Wilson, 110 Ga. 860, 36 S. E. 54; Seeger v. Mueller, 133 Ill. 86; Township of Whitley v. Linville, 174 Ill. 579, 51 N. E. 832; City of Evansville v. Page, 23 Ind. 525; Zimmerman v. State, 4 Ind. App. 583, 31 N. E. 550; Miller v. Porter, 71 ind. 521; Johns v. State, 104 Ind. 557; Hamilton v. State, 106 Ind. 361; Ewell v. Greenwood, 26 Iowa, 377; State v. Ratliff, 32 Iowa, 189; State v. Schilb, 47 Iowa, 611; State v. Weimer, 64 Iowa, 243. Alma Tp. v. Kast, 37 Kan. 433, 15 Pac. 585. The pleading should state facts sufficient to give jurisdiction. Montana Tp. v. Ruark, 39 Kan. 109, 18 Pac. 61; Gibbs v. Larrabee, 37 Me. 506; Richardson v. Davis, 91 Md. 390, 46 Atl. 964; Com. v. Carr, 143 Mass. 84; City of Big Rapids v. Comstock, 65 Mich. 78, 31 N. W. 811; Gregory v. Stanton, 40 Mich. 271; Village of Grandville v. Jenison, 84 Mich. 54, 47 N. W. 600; Gregory v. Knight, 50 Mich. 61; State v. Leslie, 30 Minn. 533. Village of Benson v. St. Paul, M. & M. R. Co., 62 Minn. 198, 64 N. W. 393. The proof must sustain the allegation of the pleadings. State v. Gilbert, 73 Mo. 20; State v. Ramsey, 76 Mo. 398; Village of Sterling v. Pearson, 25 Neb. 684, 41 N. W. 653; Willey v. Town of Portsmouth, 35 N. H. 303; Jersey City v. National Docks R. Co., 55 N. J. Law, 194, 26 Atl. 145; Voorhees v. Borough of Bound Brook, 55 N. J. Law, 548, 26 Atl. 710; Newbold v. Taylor, 46 N. J. Law, 133; People v. Hunting, 39 Hun (N. Y.) 452; Christy v. Newton, 60 Barb. (N. Y.) 332; State v. Smith, 100 N. C. 550, 6 S. E. 251; State v. Whitaker, 66 N. C. 630. Com. v. McNaugher, 131 Pa. 55, 18 Atl. 934. A street laid out by the state need not be used or accepted by the public before one may be guilty of a nuisance in obstructing it. Knowles v. District of Narragansett, 23 R. I. 339, 50 Atl. 386; State v. Sartor, 2 Strob. (S. C.) 60; Baker v. Hogaboom, 12 S. D. 405, 81 N. W. 730; Hill v. Hoffman (Tenn. Ch. App.) 58 S. W. 929; Day v. State, 14 Tex. App. 26; Kennedy v. State (Tex. Cr. App.) 40 S. W. 590; Grace v. Walker, 95 Tex. 39, 64 S. W. 930, 65 S. W. 482, modifying (Tex. Civ. App.) 61 S. W. 1103; Thurston County v. Walker, 27 Wash. 500, 67 Pac. 1099. |