33 N.J.L. 229 | N.J. | 1869
The counts of the declaration in this case which have been demurred to, charge, in substance, that the defendants have built a bridge, or viaduct, over Newark bay, whereby its navigability is diminished. It is also shown that, from this cause, special damage has been sustained by the plaintiffs. The defendants take exception to these counts, on the ground that, by a supplement to their charter, passed on the 23d February, 1860, they are authorized to bridge this water for the purposes of their road, and that there is nothing which appears in the counts in question, which shows that the bridge, whose erection is complained of, is not a proper exercise of such authority.
To this position the plaintiffs answer, first, that the supplement to the charter, upon which the defendants rely as their license for doing the acts complained of, is not a public act, and, consequently, cannot be judicially noticed, but must be set up by plea.
But, second, it is contended for the plaintiffs that, on the assumption the court will take into account the act in question, the counts demurred to are legally sufficient. The argument was, that a cause of action sufficiently appears, inasmuch as it is alleged that the bridge was made in an unlawful manner, .and that the defendants unlawfully drove piles into the ground under the water of the bay, and unlawfully obstructed the channel.
But I think a little reflection will lead to the conclusion that these terms, thus relied on, are entitled to but little effect. The rules of pleading clearly require a statement of facts which show, to a reasonable certainty, that the party-sued has done something rendering him liable to the action. Neither adjectives nor adverbs, no matter how numerous or sonorous, can fill the place of such substantial statements. A count which should allege that the defendant unlawfully drove his horse and wagon along a public highway, and thereby unlawfully narrowed the same, so that thereby the plaintiff sustained injury, would be bad. The obvious reason would be that the defendant had a legal right to do the act charged upon him, that is, to drive along the highway and thereby narrow it, and merely calling such act unlawful, would not make it so. And so with regard to this pleading, if the acts charged against these defendants are not, in the eye of the law, wrongful, the nature of such acts cannot be changed by any mere verbal stigma in the power of the plaintiffs. The question, then, is, and this appears to me to be the material one in the case, what facts are charged, in a legal sense, in the counts demurred to ? The allegations in substance are these: that the defendants built and constructed a railroad bridge, otherwise called a viaduct, across
It is insisted on the side of the plaintiffs, that it does not appear, and that the court therefore will not intend, that the bridge in question was erected in the extension of the defendants’ railroad, and in pursuance of their statutory power. But is there any legal principle on which such a contention can rest? This bridge is described as a railroad bridge; it is located between the termini of the authorized extension of the defendants’ road; and if it is not in the line of that extension, for what object has it been erected ? Most assuredly no one can deny that the conclusion that this bridge is not a part of the extension of the defendants’ road, would be a very forced and improbable one. And it should be noticed, that if the facts stated are fairly susceptible of two interpretations, that one which is most favorable to the defendants, on the plainest rules of law, is to be accepted by the court, because the defendants cannot be made wrong doers by im
But it is urged, that as the placing of any obstruction in this navigable water was actionable at common law, the plaintiffs having sustained especial damage, a prima facie case is made, which calls for a justification. The fallacy of this position is easily demonstrable. For, if it be true, then this result, which no one, it is presumed, will maintain, follows, viz., that a cause
In short, it appears to me that the rules of pleading to be applied to this case are, upon admitted principles, exceedingly clear. Thus, if the case of the plaintiffs is intended to be a denial of the right of the defendants to place any bridge over Newark bay, then the declaration should have shown simply that the defendants obstructed such water, by means which would have appeared to be destitute of all statutory authority. Then upon a justification by the defendants by force of the supplement to their charter, a demurrer would
But it is likewise suggested that this is not the mode of pleading heretofore in use in this state, and the question is put, suppose a railroad or canal company enter upon a land owner and trespass is brought, will it be implied that the land has been condemned, and that such company is otherwise authorized to enter? The answer, I think, is two-fold. First. The usual course, so far as my knowledge extends, has been to count against these companies without disclosing any of the circumstances which would impart to them an apparent authority, as in the case of Ten Eyck v. Del. and R. C. Co., already cited. And, second, in case such circumstances. should be unnecessarily stated by the plaintiff, then, under the peculiar facts of each case, the question would be whether from the circumstances thus presented a fair inference could be drawn in favor of the legality of such entry. If the plaintiff, in his own pleading, left the facts in such a condition that a conclusion, upon reasonable grounds, could be made in favor of the defendants, then, as I think, such conclusion should be drawn. The declaration in the case of Lee v. Del. and R. C. Co., 3 Zab. 243, was drawn upon this theory. The suit was for an actionable nuisance created by the canal of the defendants, and in those counts which alleged the erection of the canal as the nuisance — -an act apparently legal — the prima facie legality of such act was avoided by statements showing its improper and unskillful
The ease of Brown v. Mallett, 5 C. B. 599, affords a similar illustration. It was an indictment charging the defendant with having permitted a barge, which had sunk, in a navigable river, to remain there without placing a buoy, or other mark, to denote the danger. The court refused to draw the inference that the boat had sunk through the fault of the defendant.
The following cases, also, sustain the grounds upon which the above views have been founded: The King v. Mayor, &c., of Liverpool, 3 East 86; Bartlett v. Baker, 3 Hurls. & Colt. 153.
In conclusion, it may be remarked that if this action can be upheld in its present form, then it would seem a necessary inference, that in a suit against one of the companies authorized to build a bridge over the Delaware or other river, a count would be good which simply alleged the erection of a bridge over such navigable water, styling it an unlawful structure. Such a mode of pleading would answer no useful end. It conveys no information to the defendant. He cannot know in what respect the alleged unlawfulness consists. On the trial the plaintiff’s evidence would be altogether unbounded. And if such a count, so framed, can he replied to by plea, the whole effect of the rule claimed by
Justices Dalrimple and Depue, concurred.
Cited in Weber v. M. & E. R. R. Co., 6 Vr. 412.
Rev., p. 1223, § 66.