Appellant, Chesapeake & Ohio Railway Company, was indicted for the offense of maintaining a common public nuisance. A descriptive part of the indictment reads:
"The said defendants the Chesapeake and Ohio Railway Company did on the 23rd day of September 1953, and on divers other days and times within twelve months before the finding of this indictment, unlawfully, wilfully and knowingly having built, erected and maintained a railroad bridge, fills, abutments, piling posts and piers and other obstructions unknown to the grand jurors, in and across Greasy Creek of Jennys Creek and Greasy Creek Public Highway in such place, manner and way so as to obstruct the normal flow of Greasy Creek and by so placing constructing and maintaining said bridge, abutments, piling, posts, piers and other obstructions, in such manner, place and way as to cause gravel, dirt, mud, filth and debris, a further description to the grand jury being unknown, and swamps, to catch, accumulate, fill and clog said creek bed and public highway and rendering said public highway dangerous and impassable and unfit for the traveling public to use * * *.'
The trial resulted in a verdict of guilty and the punishment was a fine of $3,000.
A public passway may be established by prescription in the bed of a creek, McGlone v. Maynard, 303 Ky. 415, 197 S.W.2d 918, and the evidence in this record discloses that the bed of Greasy Creek had been used for travel by the public for a period of sixty years. A road which has been used by the public for such a great period of time must be regarded as a public highway. Witt v. Hughes, 66 S.W. 281, 23 Ky.Law Rep. 1836. And a railroad is subject to indictment for maintaining a nuisance where it constructs a bridge across a watercourse used as a highway in such a manner as to cause deposits to settle or the water to deepen. Louisville & N. R. Co. v. Commonwealth, 231 Ky. 554, 21 S.W.2d 981.
About forty years ago, the B. S. & K. R. Railway Company constructed a bridge across Greasy Creek which allowed a clearance of 10 to 12 feet between the creek bed and the bridge. A space between the piers of this span was traversed by the road.
In 1940, appellant, Chesapeake & Ohio Railway Company, having obtained control of this section of the track, built a new bridge and placed a new set of pilings or piers under it. This bridge is of standard construction and has piers 12 feet apart. The channel of the creek, which is about 6 feet wide, is situate between two of these piers. The clearance, at the time of construction, was as great as that which formerly existed.
About the time of the erection of this new bridge, and both above and below it, the creek bed began noticeably to fill with alluvial deposits so that by the time the indictment was returned in this case, the clearance under the bridge had been reduced to 5 or 6 feet. Persons who were accustomed to using the bed of this creek as a road were forced to reach the regular county road by transgressing, with his permission, the private property of Charles Carpenter.
The Commonwealth admits that the direct cause of the obstruction of the passway was the filling in of the bed by sediment, but insists that this deposit is traceable in turn to methods used in the reconstruction of the bridge in 1940. Witnesses introduced by Commonwealth stated that when this bridge was being built new sets of piling were placed in the creek bed near the old piers, and the old piers were permitted to remain some six or eight months before they were sawed off at bed level, the inference being that the course of the stream was altered with the result that the suspended matter in the water was precipitated.
We are unable to accept this theory because it is unsupported by the evidence. The proof is overwhelmingly to the effect that the entire creek bed has gradually filled, both above and below the bridge and even to the mouth of the stream. Most of the witnesses introduced by Commonwealth refused to hazard a guess as to the cause of the deposits. The most damaging testimony was given by Charles Carpenter. This is an excerpt from his testimony:
"Q. You testified, Mr. Carpenter, about this road becoming gradually impassable; how long a period has been involved? A. When I began to pay attention to it was when it began to hurt me and I couldn't travel it right.
"Q. What year was that? A. It would be within five years.
"Q. What happened then was the creek bed simply filling up with sand? A. This bridge was being filled up in under there with sediment and things like that.
"Q. The Railway Company never lowered the bed of the bridge, that is, the level of the track? A. I believe it was raised a little.
"Q. And the interference you had was caused by the creek bed coming up, wasn't it? A. Yes, sir, but it was caused ...