Helena Lumber Co. v. Montana Central Railroad

Montana Supreme Court

Helena Lumber Co. v. Montana Central Railroad

10 Mont. 81

DecidedJuly 15, 1890

StatusPublished

This text of 10 Mont. 81 (Helena Lumber Co. v. Montana Central Railroad) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Helena Lumber Co. v. Montana Central Railroad, 10 Mont. 81 (Mo. 1890).

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Opinion

De Witt, J.

The first point on the appeal we will not consider.

The plaintiff pleaded by replication after the demurrer to the answer was overruled. If the striking out of the replication were correct, judgment on the pleadings properly followed. If the replication should have been allowed to stand, the judgment must be reversed; To that inquiry we will address ourselves. It is not very clearly alleged in paragraph 5 of the answer [86]*86that defendant had any railroad, or that the depot building was necessary or incident to any railroad franchise. But the overruling of the demurrer was a declaration of law by the court that the allegation, that the land was necessary and incident to the franchise, constituted a defense, if true. If this were a defense by way of new matter, the plaintiff had the right to deny it in a replication. He did so. There is no reason why this replication should not stand, and the issue thus framed be tried, unless plaintiff had admitted in its complaint what it denied in the replication. Paragraph 4 of the complaint, cited in full in the foregoing statement of facts, is the portion for examination. The language is grammatically awkward, but as we are enabled to construe it, it alleges that the land described is necessary to the use of the depot building, not that the land or building is necessary to the use of the railroad franchise, or incident thereto; nor does it allege that defendant had any railroad or railroad franchise. Therefore, when defendant in its answer alleges that the land against which the lien is invoked is “incident to its franchise, and useful and indispensable and necessary, and facilitates the successful operation of said railroad,” and the court holds, in overruling the demurrer, that this matter is a good defense, the plaintiff has admitted nothing in its complaint which precludes it from denying the truth of this material matter in the answer. We are of opinion that the replication should have been allowed to stand.

The judgment is therefore reversed, and the case remanded to .the District Court for further proceedings in accordance with these views.

Blake, C. J., and Harwood, J., concur.

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De Witt, J.

The first point on the appeal we will not consider.

The plaintiff pleaded by replication after the demurrer to the answer was overruled. If the striking out of the replication were correct, judgment on the pleadings properly followed. If the replication should have been allowed to stand, the judgment must be reversed; To that inquiry we will address ourselves. It is not very clearly alleged in paragraph 5 of the answer [86]*86that defendant had any railroad, or that the depot building was necessary or incident to any railroad franchise. But the overruling of the demurrer was a declaration of law by the court that the allegation, that the land was necessary and incident to the franchise, constituted a defense, if true. If this were a defense by way of new matter, the plaintiff had the right to deny it in a replication. He did so. There is no reason why this replication should not stand, and the issue thus framed be tried, unless plaintiff had admitted in its complaint what it denied in the replication. Paragraph 4 of the complaint, cited in full in the foregoing statement of facts, is the portion for examination. The language is grammatically awkward, but as we are enabled to construe it, it alleges that the land described is necessary to the use of the depot building, not that the land or building is necessary to the use of the railroad franchise, or incident thereto; nor does it allege that defendant had any railroad or railroad franchise. Therefore, when defendant in its answer alleges that the land against which the lien is invoked is “incident to its franchise, and useful and indispensable and necessary, and facilitates the successful operation of said railroad,” and the court holds, in overruling the demurrer, that this matter is a good defense, the plaintiff has admitted nothing in its complaint which precludes it from denying the truth of this material matter in the answer. We are of opinion that the replication should have been allowed to stand.

The judgment is therefore reversed, and the case remanded to .the District Court for further proceedings in accordance with these views.

Blake, C. J., and Harwood, J., concur.

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Bluebook (online)

10 Mont. 81, Counsel Stack Legal Research, https://law.counselstack.com/opinion/helena-lumber-co-v-montana-central-railroad-mont-1890.