179 Iowa 228 | Iowa | 1916
Passing the question whether the alleged error, if any, was not waived by defendant’s act in thereafter filing an answer, we find no reason to criticise the correctness of the ruling. The allegations said to be surplusage may have been to some extent argumentative or statements of evidence, but nothing was alleged which in any way served to cloud or obscure the real nature of the claim, or to prejudice defendant in the assertion of any of the defenses upon which it has chosen to rely.
So, too, upon the demand for more specific statement. If defendant had any franchise or other right or claim of right to destroy the trees, it was in the nature of an affirmative defense, which it was at liberty to plead and prove if so advised.' It could not require the plaintiff to negative his own assertion of right by alleging the matters, if any, upon which an affirmative defense might be predicated.
necessity of cutting the trees.” In the first place, the pleadings do not seem to raise any such issue, save that the answer declares in general terms that defendant had the lawful right to occupy the street with its lines, and that, in their construction, it was necessary to cut and remove the trees. The only evidence offered of such right was a resolution passed by the board of supervisors, granting the Iowa Kailway & Light Company permission to erect and maintain poles and wires for electric lights and power upon a eertaiu highway running from the city of Perry along a prescribed route eastward “to the corporate limits of the town of Woodward.” Also upon a certain “other highway which runs east from the town of Woodward” along a prescribed route to the county line. There is nothing in the record to show that plaintiff’s property abuts upon either of the highways named in the resolution. On the contrary, it does appear that the property abuts upon a street in the town of Woodward, and that the resolution of the board of supervisors does not in form or substance give defendant permission to occupy any street within the municipal territory. There is neither plea nor proof of the grant of a franchise for such purpose by the town of Woodward, and it is therefore unnecessary for ns to consider or decide the extent of the authority, if any, which such franchise would confer upon the defendant to cut and destroy the shade and ornamental trees maintained by the property
What we have said sufficiently covers all objections and exceptions on which defendant asks a reversal of the