general borough act. After the road was built and in operation, the borough filed a bill in equity, averring that the streets crossed were not properly bridged, that the crossings were now dangerous to the public, and detrimental to the business interests of the community, and praying relief in the premises. A master was appointed, who reported (1) that, at two crossings, the company had built wagon-bridges; that at both there was much travel, both on foot and in teams; that horses were frequently frightened by the noise of moving trains, rendering the bridge unsafe for foot passengers; (2) that at another crossing, used necessarily by nearly all the inhabitants and many school children, the company had numerous tracks; that there the noise of moving trains was almost constant; that this crossing was dangerous; and that parties were frequently delayed here waiting for the tracks to be cleared, as there was no bridge. The master further reported that the common council of the borough had passed a resolution requiring a bridge at these three crossings, the provisions of which had been accepted by the railroad company. Held, (1) that the company had the right to construct its road over the streets in question; (2) that the facts of the case did not show such a gross abuse of that right as would authorize the interference of a court of chancery; and (3) if the borough had the right to make the contract with the railroad company their only remedy for a breach thereof was an action at law for damages. Appeal of Borough of South Waverly (Pa.) 11 Atlantic Rep. 245.

SAVANNAH, FLORIDA AND WESTERN R. Co.

v.

STATE.

(Advance Case, Florida. November 23, 1887.)

The statute of this State to prevent the obstruction of highways changes the common law by requiring that the obstruction should be wilful to render it indictable.

The word "wilful" in statutes like this implies legal malice, evil intent, or the absence of reasonable ground for the accused to believe that the act charged was lawful.

An indictment which charges that a highway has been "unnecessarily and unreasonably obstructed," omitting to charge that it was wilfully done, is insufficient in this State.

ERROR to circuit court, Duval county; James M. Baker, Judge. The Savannah, Florida & Western R. Co., plaintiff in error, was indicted for obstructing a highway. The opinion states the facts. Fleming & Daniel and Chisholm & Irwin for plaintiff in error. The Attorney General and Randall, Walkers & Foster for defendant in error.

MAXWELL, C. J.-The plaintiff in error was indicted for a nuisance in obstructing a highway in the county of Duval. The indictment recites the long existence of the highway,

PACTS.

66

the construction of a railroad upon and across it, with numerous tracks, by the East Florida R. Co., a Florida corporation, and an arrangement of said company with the Savannah, Florida & Western R. Co., "a corporation created and existing under the laws of the State of Georgia," by which the last-named company used and operated said railroad "with and by means of many engines and cars, for the transportation of freight and passengers over [the same] and across the said highway," and that the said companies and others entered into a contract March 19, 1884, whereby these two companies "merged their several stock and property under one management and name, to-wit, the S., F. & W. R. Co." The latter company has since laid down other tracks at the place where the railroad crosses the highway, and has every day to the time of finding the indictment operated said railroad and tracks by the use of engines and cars thereon across said highway. The indictment then charges that said company "has used and continues to use the said tracks at the said place of crossing, for the purpose of shifting and training its said engines and cars, and stopping said engines and cars, upon said track at said place of crossing at every hour of the day, and for unnecessarily and unreasonably long periods of time during such days and hours, to-wit, for the space of 30 minutes at each such time, as it suits the convenience of the said [company] in utter disregard of the right of the people and to the great damage, hazard, and inconvenience of the people, and thereby rendering it at all hours of the day and night unsafe and dangerous for the people to cross the said tracks upon said highway; . . . and that the said highway at the place aforesaid has been and is thus unnecessarily and unreasonably obstructed by the said [company] without warrant or authority of law."

The defendant below moved to quash the indictment on grounds that will appear hereafter, but the court overruled the motion. There was then a trial, which resulted in the conviction of defendant. A motion for a new trial was made, which the court denied, and sentenced defendant to pay a fine of one dollar and "to abate the nuisance set forth in the indictment on or before the first day of May, A. D. 1886." There is a bill of exceptions in the record, the matters of which we need not state, as the case, under the view we take, will go off on grounds that render a decision of those matters superfluous.

The first error assigned is the denial of the motion of defendant to quash the indictment. The grounds of the motion were: "(1) Because it does not appear that the defendant wilfully caused an obstruction to the said highway; (2) because the constructing, maintaining, and operating the said railroad and its said tracks as alleged, is authorized by law; (3) because it does not appear by said indictment that the said defendant has a greater number of tracks across the said highway than are necessary for

the convenient transaction of its business; (4) because it is not alleged by the said indictment that the said defendant stops its engines or cars upon the crossing of the said highway for a longer time than is necessary for the convenient transaction of its business; (5) because there is no specific description of the nuisance complained of; (6) because the facts stated in said indictment do not set up an offence punishable by law; (7) because the indictment alleges conclusions of law."

SUFFICIENCY OF
INDICTMENT.

The offence charged is a nuisance in "unnecessarily and unreasonably" obstructing a public highway. It does not clearly appear from the indictment whether the obstruction complained of consists in the tracks laid across the highway, or in the improper use of those tracks in operating the road, or both. Either would be a nuisance if there was not legislative authority to construct a railroad at that crossing. If there was such authority, as is to be inferred from the fact stated in the indictment that some of the tracks were laid by the East Florida R. Co., a corporation "under the general laws of Florida " (the defendant deriving its rights from said company), that authority makes lawful what would otherwise be a nuisance; but it must be exercised within the limits prescribed for a roadway by the general laws referred to, confining its track or tracks to those limits, and using it or them in such manner and to such extent as is contemplated by the statute.

But whether the complaint be against the tracks, or the improper use of them, or both, we think the indictment defective, on the first ground of the motion, in not charging that the obstruction was caused wilfully. It is clearly so, if to be regarded as a statutory indictment. The statute is this: "If any person or persons within this State shall obstruct any public road or established highway, by fencing across or into the same, every such person or persons who shall build any such fence, or wilfully cause any other obstruction in such road or highway, or any part thereof, shall be liable to be indicted." But there is a rule of law that where a statutory offence is merely declaratory of a common-law offence, with a new and different punishment prescribed, there may be indictment under the statute as cumulative, or under the common law, at the option of the prosecutor. Bish. St. Crimes, § 164. The question, then, is whether this indictment, failing to meet the requirements of the statute, is nevertheless a good common-law indictment. We do not find that, under the common law, it was necessary in an indictment for a nuisance in obstructing a public highway to charge wilfullness. Indeed, the rule seems to be that it is not necessary. Whart. Crim. Pl. & Pr. § 269. Yet here is a statute which, though specific as to a certain sort of obstruction, has, besides, a general breadth that brings the offence within the rule of the common law; but, to be indictable, the obstruction must

have been wilful. We think the proper construction of this statute, which covers the whole field of obstruction of highways, is that it changed the common law, and added, as an essential ingredient of the offence, that the obstruction should have been caused wilfully, and consequently that any indiement for the offence should so charge. If this is not so, and a common-law indictment which omits this ingredient of the offence can be sustained, we have the anomaly of law which holds one man guilty for his unlawful acts alone, while another for the same acts will not be held guilty unless they were committed wilfully.

The word "wilful" in statutes of this character is held to mean or imply legal malice, or an evil intent, or the absence of reasonable ground for belief by the accused that the act charged

OF WORD "WIL

was lawful. It does not mean simply that the act was SAME-MEANING intentional, or not accidental. To sustain the indict- FUL." ment or make out the criminality of the offence, it must be shown that the obstruction was caused with an evil intent; that there was an absence of any reasonable ground for the belief, upon the part of the person making or causing the obstruction, that in doing it he was acting lawfully. Schubert v. State, 16 Tex. App. 648; Trice v. State, 17 Tex. App. 43; Brinkoeter v. State, 14 Tex. App. 67; Thomas v. State, Id. 200.

In State v. Preston, 34 Wis. 675, it is held, under a statute quite similar to ours, that "wilfully" sometimes means little more than intentional; but in penal statutes and criminal law it usually con.. veys the fuller idea that the act was done wrongfully, in bad faith, with evil intent or legal malice, or without reasonable ground for believing it to be lawful. 1 Bish. Crim. Law, § 421; State v. Abram, 10 Ala. 928; McManus v. State, 36 Ala. 285; Com. v. Kneeland, 20 Pick. 206, 220; Com. v. Bradford, 9 Metc. 268. is clear to our minds that the word "wilfully" is used in the statute to characterize the intent with which an obstruction of a public highway must have been made, to be criminal. It is not every obstruction, but only one, which has been wilfully made or caused, that is criminal in this State.

In Brinkoeter v. State, supra, it is said: "A most vital issue raised by the evidence in this cause was the intent of the defendant in placing his fence across the road; that is, whether the act was wilfully done, or done through mistake of fact. In order to legally convict the defendant, it was necessary for the prosecution to show by its evidence that he obstructed the road wilfully." This intent is not to be presumed.

As to the other grounds of the motion to quash, we think the second, third, and fourth not good, because they set up matters which should properly come from the defendant at the trial under the plea of not gnilty. There is some reason for the fifth, in that the description of the nuisance leaves it uncertain whether the in

dictment is aimed at the tracks, or their improper use, or both; but it is sufficiently specific to show a nuisance, and therefore not amenable to defendant's objections. The sixth is good, falling in line with the rule that the omission to allege that the obstruction was caused wilfully renders the indictment defective. We do not see that the indictment alleges conclusions of law to render the seventh ground available to defendant's motion.

We may remark as to another feature of the indictment that it alleges that defendant is a corporation under the laws of the State of Georgia, while it further alleges that, by a contract between defendant and the East Florida R. Co. and other companies, the stock and property of defendant and the East Florida R. Co. were merged under one management and name, to-wit, the name of defendant. It is our opinion that under the laws of this State, which authorized such connection and consolidation, the resulting company became a corporation of Florida, and that an indictment against it here should so allege. Our conclusion is that the indictment should have been quashed.

This disposes of the case in such manner as to preclude any decision of the other errors assigned, as it leaves no indictment under which a new trial could be granted, if we should conclude there was error in refusing it. The judgment is reversed, and the cause remanded, with direction to quash the indictment.

Indictment of Railroad for Obstructing Highway. See Palatka, etc., R. Co. v. State, and note, post.

NEW YORK AND GREENWOOD LAKE R. Co.

v.

STATE.

(Advance Case, New Jersey. February 27, 1888.)

Neglect to keep a bridge in repair across a cut made by a railroad company, where its road crosses a public highway, so that travel is obstructed upon the highway, is a breach of duty to the public, for which the owners or operators of the railroad are indictable.

The duty of building and keeping in repair such bridges, which was imposed upon the Montclair R. Co.by its charter, devolved upon a new corporation which purchased the property and franchises of the old corporation at a sale made under a decree of foreclosure, and organized itself under section 56 of the Railroad and Canal Act.

The recital of a decree of foreclosure, contained in a duly acknowledged master's deed is prima facie evidence of the existence of the decree.