This is an indictment against the defendant company for erecting and maintaining a nuisance by laying and putting down and using certain tracks, with iron rails across and over a highway situate in Portland, about sixty feet south of the place whore the main track of said railroad company crosses said highway.

Sect. 15, of c. 51, R. S., provides that “railroads may cross highways in the line of the road,” but “ the conditions and manner of crossing are to be first determined in writing by the county commissioners,” and “ crossings not so made are to be regarded as nuisances, and may be so treated.”

*48This statute (upon the provisions of which this indictment was drawn) makes that a nuisance which was not one under any other provision of law. Its object was to sectu’e the action of the county commissioners in certain cases. Want of such action alone constitutes the nuisance. The track and its use may have none of the elements of a nuisance at common law, or a nuisance as defined by c. 17 of the R. S.; if this action is wanting, it is under this chapter a nuisance. If this act is not wanting, no matter what the character of the erection, or use, it is not under this statute a nuisance. In a proceeding under this act it is the material inquiry.

To bring the case within the provisions of this statute, it must appear that the railroad crosses in a manner not determined by the county commissioners. No such allegation appears in the indictment in this case. Without it, it is fatally defective. It is the material matter, without which the act has necessarily no more of the element of nuisance than of assault and battery. There is an allegation in the indictment that the defendants “ did unlawfully and injuriously lay, place, and put down, and caused to be laid, placed, and put down three certain tracks with iron rails, in, upon, across, and over said highway, etc.” This is not equivalent to an averment that the railroad crosses in a manner not determined by the county commissioners, nor that the county commissioners have never taken action thereon. The allegations made may all be true, and yet the commissioners may have imposed, as required, the manner and conditions of crossing, and their requirement fulfilled by the defendants to the letter. The “ unlawfulness ” may consist in something else. This is a statutory offense, and enough must be alleged to 'show it has been committed.

In the court helow, the jury were substantially instructed that unless the defendants had complied with the statute regulating railroad crossings, they would be liable upon this indictment if the way was a highway.

The respondents requested the instruction “ that the statute of 1858, embodied in the R. S., in reference to railroad crossings, does not apply.” This the judge declined to give, and did instruct them *49“ that the defendants are not exempt from the duty of complying with tlie requirements of the statute regulating crossings.” He further stated “ that the respondents are not indicted for unreasonably obstructing the alleged highway, or for unreasonable conduct, but for unlawfully placing certain side-tracks across the alleged highway, and unlawfully sustaining, using, and maintaining them.”

. The indictment being insufficient for a proceeding under this statute, the exceptions must be sustained. Exceptions sustained.