Tibbets v. Blade
Synopsis
Action fob Public Nuisance—Judgment on the Pleadings.—Appeal from a judgment for the defendant in an action for damages for a public nuisance committed by obstructing a highway, and from an order denying a motion made by the plaintiff after judgment to set aside the judgment and enter judgment in his favor on the pleadings.
Held: The motion was irregular and was properly denied; and if a like notice had been made at the commencement of the action, it should have been denied, because all the material allegations of the complaint are denied in the answer.
Id.—Evidence—Ejectment.'—Even if the action could be construed as in ejectment for the premises alleged to have been intruded upon by the defendant, evidence as to the intrusion was properly excluded in the absence of evidence of seisin or possession by plaintiff.
Id.—Complaint.—But the complaint clearly shows that the action is to recover damages for a public nuisance and is defective in not alleging special damages to the plaintiff.
The Court: After verdict in favor of defendant, and judgment thereon, plaintiff moved to set aside the judgment and for judgment in his favor on the pleadings for five hundred dollars—expressly waiving a motion for new trial. The motion was irregular and was properly denied.
But even if the like motion had been made at the commencement of the trial, it should have been denied, because, all the material averments of the complaint are denied by the answer.
If disconnected statements of facts can be culled from the complaint such as might constitute the statement of a cause of action in ejectment, the objections made by defendant to evidence offered by plaintiff (as the same are set forth in the bill of exceptions), were properly sustained, in the absence of [431]evidence of seisin or possession by plaintiff of the premises alleged to have been intruded upon by defendant.
But the complaint clearly shows that the action is brought to recover damages for a public nuisance committed by obstructing a highway. The complaint contains no averment of facts showing special damage such as would authorize a private person to maintain the action.
Judgment and order affirmed, with twenty-five per centum damages.
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