Opdycke v. Easton & Amboy Railroad

Supreme Court of New Jersey

Opdycke v. Easton & Amboy Railroad

52 A. 243, 68 N.J.L. 12, 39 Vroom 12, 1902 N.J. Sup. Ct. LEXIS 69

DecidedJune 9, 1902

StatusPublished

This text of 52 A. 243 (Opdycke v. Easton & Amboy Railroad) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Opdycke v. Easton & Amboy Railroad, 52 A. 243, 68 N.J.L. 12, 39 Vroom 12, 1902 N.J. Sup. Ct. LEXIS 69 (N.J. 1902).

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Opinion

[13]*13The opinion of the court was delivered by

GrDMMEEB, Chief Justice.

The first count of the declaration sets out that the defendants gave to the plaintiff a right of way over their bridge, so that he might go from lands belonging to him which lay at one end of the bridge to other lands belonging to him which lay at the other end of it. There is no allegation' in the declaration from which it can be gathered that the right of way claimed by the plaintiff was granted to him by a deed or other writing, or was irrevocable by the donor. The most that can be presumed against the" defendants therefore, from the statement of the pleader, is that the right of the plaintiff to cross the defendants’ bridge was that of a licensee, and that this right was terminable at any time at the option of the defendants.

The injury complained of is that the defendants permitted the bridge to fall out of repair to such an extent that it became unsafe for the plaintiff to use it, and that they refused to repair it, although frequently requested by plaintiff to do so.

The defendants were under no obligation to keep the bridge in repair for the benefit of a mere licensee, and their failure to do so created no right of action against them in favor of the plaintiff.

The other counts of the declaration are each of them- de- . fective, because they, neither of them, lay a day when the wrongful act complained of was done. Although the precise day is not material, yet it is necessary to lay some day, and the day specified must be one which precedes the commencement of the suit. The rules of pleading require that each count shall disclose, upon its face, a distinct right of action, and the statement that the right of action accrued “on the' day aforesaid,” the reference being to a day set out in a preceding count, when a number of different days are referred to therein, is insufficient.

Other grounds of demurrer to the second, third, fourth and fifth counts have been specified by the defendants, but as those counts are each defective for the reason just pointed out, it is unnecessary to consider other specifications.

The defendants are entitled to judgment on the demurrer.

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[13]*13The opinion of the court was delivered by

GrDMMEEB, Chief Justice.

The first count of the declaration sets out that the defendants gave to the plaintiff a right of way over their bridge, so that he might go from lands belonging to him which lay at one end of the bridge to other lands belonging to him which lay at the other end of it. There is no allegation' in the declaration from which it can be gathered that the right of way claimed by the plaintiff was granted to him by a deed or other writing, or was irrevocable by the donor. The most that can be presumed against the" defendants therefore, from the statement of the pleader, is that the right of the plaintiff to cross the defendants’ bridge was that of a licensee, and that this right was terminable at any time at the option of the defendants.

The injury complained of is that the defendants permitted the bridge to fall out of repair to such an extent that it became unsafe for the plaintiff to use it, and that they refused to repair it, although frequently requested by plaintiff to do so.

The defendants were under no obligation to keep the bridge in repair for the benefit of a mere licensee, and their failure to do so created no right of action against them in favor of the plaintiff.

The other counts of the declaration are each of them- de- . fective, because they, neither of them, lay a day when the wrongful act complained of was done. Although the precise day is not material, yet it is necessary to lay some day, and the day specified must be one which precedes the commencement of the suit. The rules of pleading require that each count shall disclose, upon its face, a distinct right of action, and the statement that the right of action accrued “on the' day aforesaid,” the reference being to a day set out in a preceding count, when a number of different days are referred to therein, is insufficient.

Other grounds of demurrer to the second, third, fourth and fifth counts have been specified by the defendants, but as those counts are each defective for the reason just pointed out, it is unnecessary to consider other specifications.

The defendants are entitled to judgment on the demurrer.

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Bluebook (online)

52 A. 243, 68 N.J.L. 12, 39 Vroom 12, 1902 N.J. Sup. Ct. LEXIS 69, Counsel Stack Legal Research, https://law.counselstack.com/opinion/opdycke-v-easton-amboy-railroad-nj-1902.