Whitenack v. Philadelphia & R.R. Co.

• Decision Date: 26 September 1893
• Citation: 57 F. 901
• Parties: WHITENACK v. PHILADELPHIA & R. R. CO.
• Court: U.S. District Court — District of New Jersey

57 F. 901

WHITENACK v. PHILADELPHIA & R. R. CO.

United States Circuit Court, D. New Jersey.

September 26, 1893

H. M T. Beekman, for the demurrer.

John R Emery and S. H. Grey, opposed.

GREEN District Judge.

The declaration in this cause, as amended, charges the defendant with having contributed to the maintenance of a certain embankment, piers, and bridge, which its lessors had wrongly built, constructed, and maintained across the Raritan river near the lands of the plaintiff, which caused the waters of the Raritan to be backed upon the plaintiff's land, and inflict great damage there. To this declaration the defendant filed three pleas: First, the plea of general issue; second, the plea of the statute of limitation; and, third, that the defendant had had no notice from the plaintiff to abate the nuisance, although it was not the erector of the embankment, but simply the lessee thereof. To the last two pleas the plaintiff filed a general demurrer. It is well settled by the law of pleading that if but a single demurrer is filed to a declaration containing several counts, if any count be deemed good, judgment must be given against the demurrant; and so, if the defendant plead several pleas, all of which are demurred to, judgment must be given for the defendant, if either of the pleas be good. 1 Chit. Pl. p. *665, note 3. This principle is recognized in this state in the case of Hudson v. Inhabitants of Winslow, 35 N. J. Law, 437. In this suit there were 10 special pleas. Some of the pleas were held to be good, and others bad. In delivering the opinion of the court, Justice Beasley says: 'As some of the pleas contained in the demurrer are good, the defendants are entitled to judgment.' The same rule prevails in the federal courts. In case of U.S. v. Girault, 11 How. 22, Mr. Justice Nelson says: 'As the demurrer put in is general to four several pleas, if any one constitutes a good bar to the action the demurrer is bad.'

The first plea demurred to is the plea of the statute of limitation. I do not see how this can be held to be other than a good plea in bar. The action is an action on the case for damages alleged to result to the plaintiff from the erection or maintenance of an obstruction to a water course whereby the plaintiff's lands are seriously affected by the overflow of water. The Revised Statutes of New Jersey expressly declare that all actions of trespass and upon the case shall be...