Dreher v. Yates
43 N.J.L. 473
N.J.
1881
Check Treatment

The opinion of the court was delivered by

Beasley, Chief Justice.

There were three exceptions taken to the plea which has been demurred to, the first of these being, that the defendant has not shown that the flagstaff in question was an obstruction to the public street, and that it was only in such event that the ordinance of the city gave the defendants authority to remove it.

*476But this objection does not comport with the plain statements of the plea, in which it is alleged both that the flagstaff was placed in the street, and that it obstructed it. The counsel for the defence appeared to think that the mode of plaoing and the mode of obstruction should have been specified. It would be difficult for the pleader to do this, and it is quite unnecessary. A flag-staff placed in a public street is, per se, a nuisance; and the reason of this is that, in the nature of things, it is an obstruction to those who have the right to the use of the street over its entire area. The fact of the existence of such a structure so located, justifies the allegation that it was an unlawful obstruction. The allegations and structure of this plea, in this respect, are in conformity to the settled forms. 2 Chit. Pl. 98.

In the next place, it is said thát the city ordinance by force of which the defendants seek to justify the doing of the act which forms the subject of complaint, does not extend to such an obstruction as the present one. The section of the city law giving rise to this deduction, declares that “ no person shall encumber or obstruct any street, highway, public lane or alley, public wharf, dock or slip, or other public place in the city of Newark, by placing therein or thereon any building materials, or any article or thing whatsoever, without having first obtained the written permission of the street commissioner, under a penalty of ten dollars,” &c.

From this language it is argued that the things which are forbidden to be placed in these public streets are things that are movable, inasmuch as the things referred to are such as the street, commissioner has authority to permit to be placed in the streets, and, consequently, permanent obstructions are not within the scope of the prohibition. I see no force in this argument. The permission that can be given by this, officer is, in its nature, revocable, and can have but a temporary operation ; so that he cannot, by his sanction, perpetuate an obstruction of these highways. Besides, it would be entirely irrational to say that, if a man can succeed in planting his wrongful structure in the soil of the street, he *477has effectually removed himself beyond the reach of the penal provisions of this law. Nor is the further argument less unsound, to the effect that the general terms in this ordinance, which prohibit the placing in a street “ any article or thing whatsoever,” do not embrace the flag-staff in question, inasmuch as such phrase must, according to the legal rules of construction, be limited by the particular description of things prohibited preceding it. The enumeration of “ building materials,” it was insisted, restricted the generality of the succeeding description contained in the expression, “ any article or thing whatsoever,” so that the latter phrase means, in the language of the brief, “ any article or thing of the cumbrous character of building materials.” But why a flag-staff, in point of cumberousness, did not have the necessary correspondence to building materials, was not explained. The legal rule which was sought to be applied on this point, was the maxim of construction, that general terms following a specification of things of a particular class, must be understood to refer to things of the same class, or at least of the same general character; but it will be observed that the application of this rule to this case brings this erection made by the defendant within the scope of the prohibiting clause in question, as the flag-staff is plainly of the same general character of some of the materials used in buildings.

But it is not necessary to dilate further on this branch of the case, for it was under the next section of this ordinance that the defendants acted in the removal of the obstruction in question, and that section authorizes these officers, in general terms, and without any previous specification, to remove “ any article or thing whatsoever, which may encumber any street,” &c. The object here in view was reasonable—the language is plain.

Again, it is objected that the plea does not show with the requisite certainty that the notice to remove the obstruction in question which is called for by the city ordinance, was given to the defendant. The authority of this law is con-' ferred upon these officers to remove these nuisances, “ if such *478article or thing shall not be removed within two hours after notice to the owner thereof.” The plea, in this respect, does not explicitly state, as it undoubtedly should do in strictness, that such a two hours’ notice was served, but in lieu thereof it avers that the defendants proceeded to remove the obstruction, “after due notice in writing to the said plaintiff, to remove the same, and after the time limited in said notice for the removal of the same.” It will be noted that the allegation is that due notice was given, and that due notice must mean, ex neaessitati rei, a two hours’ notice. A traverse, therefore, of the allegation of due notice would, in substance and by indirection, raise the issue whether the notice required by the law had been given. When such an issue can be raised on an allegation of this kind, I understand that it is the rule that, although such allegation is faulty in point of correct pleading, such irregularity cannot be excepted to by way of a general demurrer, Mr. Chitty correctly says that the recent decisions hold that an objection of this character must be taken by a special demurrer. 1 Chit. PI. 364. Nor do the cases cited, which have been decided by this court, conflict with this doctrine. In Wheeler v. Essex Road Board, 11 Vroom 138, the motion was to strike out pleas; and in Morgan v. Town of Guttenberg, 11 Vroom 394, the allegation with respect to the giving of notice was such that no sensible issue could, by possibility, have been raised upon it.

The judgment should be affirmed.