Irwin v. Yeager

Mar 10, 1888

Reporters:: , ,
Before:: Seevers

Seevers, C. J.

Thе defendants ■ jointly pleaded a ’ .general denial, and that the plaintiff assaulted them, and that they simply defended themselves, as they lawfully might do. The defendant Yeager separately pleaded that he was lawfully passing along a highway adjoining or passing over the property of the plaintiff, and while upon the highway the plaintiff made an assault upon the defendant, and thereupon the defendant defended himself, as he lawfully might, doing no further injury to the plaintiff than was necessary. The other appellant pleaded the same defense in the same form and manner. The defendants also jointly pleaded in the sixth division of the answer that the same highway passing through the lands of the plaintiff had become founderous and utterly impassable for a considerаble distance by reason of a heavy fall of snow, and, therefore, it was absolutely necessary for persons passing аlong said highway to pass over the lands of the plaintiff adjoining or abutting on the highway; that the defendants attempted to do so, whеn they were assaulted by the plaintiff, and thereupon defended themselves, as they lawfully might do. The plaintiff filed a motion to strike out the sixth division of the answer, on the ground that the matters pleaded were immaterial and irrelevant. This motion *176was sustained. The defendants offered evidence tending to prove that the highway was impassable and ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍had suddenly become so. This evidence wаs rejected. The ’ court instructed the jury as follows :

“ 1. The right of a traveler upon the public highway to go upon the adjoining lands in сase the highway is obstructed is a public right, which was taken into consideration at the time of the establishment of the highway, and for the exercise of which right on the part of the public the owner of the adjoining land has received compensation ; аnd such traveler may, no objection being made by the owner or occupant, lawfully enter upon such adjoining lands, in casе the highway becomes impassable by recent obstructions, and open the fence and inclosures, if necessary, and pass around such obstruction, doing no damage to the adjoining ■ premises or the crops growing thereon, or the fences, bеyond such as is necessary to enable him to pass.”

“6. No question is made but that the plaintiff was the owner and in possession of the land on or adjoining which the affray took place, and, being so, he had the right to stop the defendants from going thereon, аnd to use such force as was necessary to that end, but legally no more, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and if he intentionally used more force or a grеater degree of violence than was necessary to that end, he would be guilty of an assault himself, and the defendants would themselves have the right of self-defense, although they might have commenced the affray in the first instance.”

i ‘appeal: piea<un|:: noteralsed below. I. It is provided by statute that in an action brought for an injury to a “person, character or property, the defendant may set forth, in a distinct division of his answer, any facts °f whi°k evidence is legally admissible to mitigate or otherwise reduce the damages, whether a complete defense or justification is pleaded or not; and he may give in evidence the mitigating circumstances, whether he prove thе defense or justification or not. * * *” Code, sec. 2682. Counsel for the appellee insist that the court correctly struck out *177the sixth division of ’the answer, upon two grounds: the first bеing that, if it be regarded as pleading mitigating circumstances only, then it was essential that it should confess the battery; and, secondly, that the matters pleaded do not constitute a defense to the action. But neither of these grounds was urged in the distinct court, аnd, therefore, cannot be presented here for the first time. That the matters pleaded ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍were immaterial and redundant is essentially different from a claim that a cause of action is not stated, or that the cause of action was not confessed. If a cause of action is not stated in a pleading, the party should demur. This motion cannot be treated as a demurrer, and, if it could, it should be disregarded because not sufficiently specific.

2. highway : passage1 on: iamu assault: seif-defense. II. It will, however, be conceded, for the purpоse of this opinion, that, if the division struck out does not present a complete or a partial defense to action, then the error of the court in striking it out was not prejudicial. The material question is whether the fact that’ the highway was impassable constituted any defense to this action, and we have to say we think it does. Such has been the well-settled common-law rule in Englаnd for many years. Ang. & D. Highw., sec. 353. Highways are established for the use and benefit of the public, and when they are rendered temporаrily impassable the right of travel should not be interrupted. This right is based on the ground of inevitable necessity; and also where the publiс convenience and necessity come in conflict with private right, the latter ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍must yield to the former. . Such fact, therefore, may be pleaded ■ and shown as an excuse for the alleged trespass. Such temporary and unavoidable use of рrivate property must be regarded as one of those incidental burdens to which all property in a civilized community is subjeсt. The leading case on this subject in this country is Campbell v. Race, 7 Cush. 408, 54 Am. Dec. 731. See, also, Morey v. Fitzgerald, 56 Vt. 487. These pases sustain the views above expressed. The court, therefore, еrred in *178striking out the sixth division of the answer, and in rejecting evidence tending to sustain ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the matters therein pleaded, and also in giving the instructiоns above set out.

s’ batter™ew? mailoe?old threats. i _. exem_ age7 no1’ manes. III. Evidence was introduced tending to show that more than two years prior to the transaction in question, when the plaintiff and one of the defendants had a lawsuit, the latter, in speaking about it to the former, said: “Never mind; I y0Tl yet.’.’ This evidence was objected to, but the objection was overruled. The evidence, it may be supposed, was admitted on the theory that it tended to show malice, but the remarks were made long prior to the transaction, and the latter does not appeаr to have grown out of, or had any connection with, the lawsuit, and, therefore, we do not think such evidence had any tendency to show that defendant was actuated by malice in what he did. The evidence, therefore, was erroneously .admitted. The instructions in relation to exemplary damages are erroneous, because the jury were not required to find the assault was malicious.

Reversed.