33 Iowa 216 | Iowa | 1871
This portion of the petition alludes with particularity to the preliminary steps taken for the establishment of the road, and sets out the order of the county court establishing said road, “ to take effect when applicants make said route in good traveling condition at their own expense.”
But the intention to limit the action to a particular locality becomes more apparent by an examination of that portion of the petition which charges the' defendants with the wrongful act complained of. It is therein averred that “ said Levi Tucker, after serving notice on petitioner to remove his fences from across said located line, did, while pretending to act in capacity of road supervisor, in company with the other defendants herein named, tear down said fences.”
There is no uncertainty as to the fences the road supervisor notified the plaintiff to remove. They were the fences across said located line, and the fences torn down by defendants are made equally certain. They were said fences, to wit: The fences across said located line. Thus far the construction of the petition is plain.
The second count of the petition, however, seems to be broad enough to cover an injury committed outside of the line of said road.
Here the words said premises evidently refer to the forty acres of which plaintiff was tenant, and the fences inclosing the same can refer to nothing but the fences around said forty acre tract.
The statement “ which fences also cross the points vihtre said road ivas laid out through the same ” cannot, by any fair and natural construction, be held to limit the trespass to so much of said fences as stood upon the line of said road. The reasonable construction of this language is to limit the claim for damages to the entire lines of fence which cross the road at its points of entrance upon and exit from the premises. The rule of the common law that every thing shall be taken most strongly against the party pleading does not obtain under our statute. In the construction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties. Rev., § 2951; Gray v. Coan, 23 Iowa, 344.
The court below seems to have considered that no question was made in the issue as to any act committed outside the line of road, and held the eighth finding to be, under the issue, wholly immaterial. In this the court erred.
IV. It is claimed that a road supervisor is not liable as a trespasser, if he does no more than is necessary in making, repairing, or opening roads, and acts in good faith, believing himself within the limits thereof. As no such question seems to have been considered by the court below, and we have not the evidence from which the facts can be determined, we deem a decision of this question unnecessary to the purposes of'the present appeal.
For the error of the court in eliminating the eighth finding of fact, the judgment is reversed, and the cause remanded, for further proceedings consistent with this opinion.
Reversed.