Corthell v. Holmes

87 Me. 24 | Me. | 1894

Strout, J.

Under our statute, "the general issue may be pleaded in all cases, and a brief statement of special matter of defense, or a special plea, or double pleas in bar, may be filed.” R. S., c. 82, § 22. Brief statements should contain "a specification of matters relied upon in defense, aside from such as would come under the general issue,” and " be certain and precise to a common intent.” Washburn v. Mosely, 22 Maine, 163.

Defendant pleaded the general issue, which was joined. By brief statement, he set out three matters in defense. Plaintiff' demurred specially to the brief statement, which was overruled by the presiding judge, and judgment ordered for the defendant. To this ruling the plaintiff excepted.

The first and third grounds of defense in the brief statement were admissible under the general issue, and cannot be treated as "special matter of defense.” The second ground of defense is, that the locus in quo "has been recognized and used by the public, and by the defendants and their grantors, as a public way, from Madison street to Water street, for more than fifty years, without interruption.” The declaration in the writ charges defendant with destroying a fence and gate, hauling upon the premises quantities of rocks and other materials, tearing down and destroying a clothes-dryer, platform and steps, injuring and encumbering the soil, turf and herbage, and so forth. The brief statement does not allege that any of these things encumbered the alleged way, or obstructed the individual right of the defendant in its use, nor that they were a public nuisance, from which he suffered a special damage beyond that of the public generally, which might authorize him to maintain an action therefor, or personally to abate it. When a public nuisance obstructs an individual’s right, he may remove it to enable him to enjoy that right. But the right to abate a public nuisance by an individual goes no farther. He is not authorized to abate it merely because it is a public nuisance. Brown v. Perkins, 12 Gray, page 101.

The allegations in the brief statement, if true, are clearly insufficient to afford a justification to the defendant. The special demurrer should have been sustained.

The demurrer cannot be treated as an admission of the facts alleged in the brief statement, as two of the grounds therein were not of special matter, and should not be in the brief statement, and the other ground was insufficiently alleged. The plea of the general issue still remains, and upon it the parties have a right to be heard. Nye v. Spencer, 41 Maine, 276; Moore v. Knowles, 65 Maine, 494.

Exceptions sustained. Demurrer sustained. Brief statement adjudged bad. Action to stand for trial upon theplea of the general issue, unless the Nisi Prius Court shall allow further plea.