48 N.Y.S. 511 | N.Y. App. Div. | 1897
Plaintiff’s complaint alleges that the Lehigh Valley Railroad Company is a foreign corporation by virtue of the laws of the State of Pennsylvania, and is engaged in operating a line of railroad for the transportation of freight and passengers from Sayre, in the State of Pennsylvania; through the town of Cheelctowaga into the city of Buffalo ; that prior to the construction of the bridge mentioned in the complaint the plaintiff’s grantors were, and he is now, the owner in fee simple and possessed of a tract of land in the city of Buffalo, particularly described in the complaint; that so much of the lands described “ as lie within the bounds of Alabama street are subject to the easement and right of way of the public upon and over the same for the purpose of a public highway or street only; ” that Alabama street is one of the public streets, and ivas opened, improved and used by the public since about the year 1850. It is averred that the Lehigh Valley Railway Company, without the consent of the plaintiff or the owner of the lands, “ erected and constructed and claims to own, possess and control a bridge and superstructure upon and across that portion of the above-described lands and premises which lie within the bounds of Alabama street, which bridge and superstructure are placed upon abutments of solid masonry, placed one on the easterly and one on the westerly side of Alabama street, and upon iron posts or pillars resting in said street between said abutments, which bridge and superstructure are of a solid and permanent character, and as the plaintiff alleges * * * constitute and are a jiart of the real estate of the plaintiff in this action above-described within Alabama street as aforesaid, and the property of the plaintiff in this action ; ” that the Lehigh . Valley Railway Company, “ in connection with said bridge and
The plaintiff alleges that he desires to remove said bridge “ constructed and maintained upon his lands within Alabama street aforesaid, but apprehends and avers that the defendants in this action may attempt to interfere with or prevent the plaintiff from removing the same and open up the highway for legitimate uses, and for
The prayer of the complaint contains six subdivisions, and in one of the subdivisions the plaintiff asks for an injunction “ restraining and enjoining the defendants, or either of them, their agents or' servants, from trespass as aforesaid, upon the lands and property of the plaintiff or that part thereof which lies within the bounds of Alabama street aforesaid.”
In Richards v. Edick (17 Barb. 261) it was held : “ If a demurrer admits facts enough to constitute a cause of action, that is sufficient to sustain the complaint.”
In People v. Mayor of New York (28 Barb. 218) it was said:
*277 “ Nor is it good cause of demurrer that the plaintiff asks in his complaint for more than it shows he is entitled to ; for relief that he is not entitled to, or for further relief than he is entitled to. PTor is the insertion in the complaint of redundant or impertinent matter, or of irrelevant or unmeaning verbiage, cause of demurrer.” It is further said in the opinion in that case : “ It is the duty of the court to uncover the mass of heterogeneous facts, and to sort out and arrange them; and if it is found that any lot or parcel of them, when arranged and placed together, will stand alone as a cause of action, it is the duty of the court to overrule the demurrer.”
In volume 1, Rumsey’s Practice, page 386, it is said: “The demurrer can only be sustained when it appears that, admitting all the facts alleged, it presents no cause of action whatever. (Marie v. Garrison, 83 N. Y. 14, 23.) A complaint is good upon demurrer if it states a cause of action, no matter how much irrelevant or unnecessary matter appears in it.”
The case of Marie v. Garrison (83 N. Y. 14) was referred to with approval in Sanders v. Soutter (126 id. 195), and it was said in the latter case : “ A cause of action will be deemed to be stated in a complaint whenever the requisite allegations can be fairly gathered from all the averments, though the statement of them may be argumentative and the pleading' deficient in technical language (Zabriskie v. Smith, 13 N. Y. 330).” That rule was adverted to with approval in Felts v. Martin (20 App. Div. 64).
In the course of the opinion in Rochester Railway Co. v. Robinson (133 N. Y. 246) it was said: “' Pleadings are not now to be strictly construed against the pleader, and averments which sufficiently point out the nature of the pleader’s claim are sufficient, if under them, upon a trial of the issue, he would be entitled to give all the necessary-evidence to establish his claim. (Berney v. Drexel, 33 Hun, 34-37.)’”
The defendants’ demurrer admits that the plaintiff is the owner in fee simple of the lands within the bounds of Alabama street “ subject to the easement and right of way of the public upon and over the same for the purpose of a public highway or street only.” If the public should discontinue or abandon the public street, the entire and exclusive enjoyment of the property thus owned by the plaintiff would be subject to his enjoyment as the proprietor of the
In a late case the Court of Appeals has upheld the right of the owner of the soil in a highway, subject to the easement of the public, to maintain ejectment for the removal of telegraph or telephone poles erected thereon without the consent of the owner. (Eels v. A. T. & T. Co., 143 N. Y. 133; Matter of Grade Crossing Commissioners, 6 App. Div. 339.)
In Williams v. N. Y. C. R. R. Co. (16 N. Y. 97) it was held that, “ Although he (the owner) had a remedy at law for the trespass, yet, as the trespass was of a continuous nature, he had a right to come into a court of equity, and to invoke its restraining power to-prevent a multiplicity of suits, and can of course recover his damages as incidental to this equitable relief.” The doctrine of that case was again asserted in the second appeal under the name of Henderson v. N. Y. C. R. R. Co. (78 N. Y. 423, affg. 17 Hun, 344). (See, also, McGean v. M. E. R. Co., 133 N. Y. 9; Bowen v. D., L. & W. R. R. Co., 153 id. 479.)
It is contended by the learned counsel for the appellants that, where substantial damages cannot be awarded to the owner of premises, an equitable action will not lie. It is not necessary to determine that question in this cáse adverse to the contention of the appellants. Suffice it to say that the allegations of the complaint are to the tenor and effect that the plaintiff, by reason of the wrongful acts of the defendants, has sustained and is sustaining substantial damages.
The case as presented upon the complaint by the plaintiff is quite unlike O’Reilly v. N. Y. El. R. R. Co. (148 N. Y. 347), much relied upon by the appellants. In that case a trial had taken place before a referee, and he had, upon all the facts and evidence disclosed before him, “ found it to be a fact that a general benefit had been produced by the presence of the railway in which the plaintiffs’ property participated,” and he also found “ that the plaintiffs
W e see nothing in that case inconsistent with the views which we have already expressed, nor anything tending to indicate that if the plaintiff, on the trial of this action, shall establish substantial damages, he may demonstrate the right of recovery.
Having reached the conclusion that the complaint states facts sufficient to constitute a cause of action, we do not deem it necessary to consider the extent of the relief which the plaintiff may be entitled to, nor to determine at this time whether the plaintiff is
The interlocutory judgment should be affirmed, with costs, with leave to the defendants to answer upon payment of the costs of the demurrer and of this appeal.
All concurred, except Follett, J., not sitting.
Interlocutory judgment affirmed, with costs, with leave to defendants to answer upon payment of the costs of the demurrer and of this appeal.