Hamebsley, J.
The complaint alleges that the defendant intends to build a bridge for carrying its railroad tracks over Main street at the corner of that street and North Main street (they being highways within the limits of the town of Bristol), and threatens to build a stone abutment in connection with said bridge, so as to encroach upon North Main street and occupy a strip thereof as shown by the annexed map marked Exhibit A; and claims an in[315]*315junction restraining the defendant from building any structure within the limits of North Main street. Exhibit A is a map drawn to a scale, purporting to be a, facsimile of the defendant’s plan and profiles for the abolition of the Main street grade crossing at Bristol, prepared and signed by its chief engineer.
The right of the plaintiff to ask an injunction arises from the duties imposed upon it by law, as the agent of the State, in the maintenance and care of these highways; and the defendant in its second defense sets up the paramount authority of the State, exercised through an order of the railroad commissioners, appropriating this portion of the highway as necessary for the abolition of a public nuisance endangering the lives of its citizens who use the highways.
The answer contains a first defense, in which each allegation of the complaint is either denied or admitted, and a second defense which purports to allege extrinsic facts sufficient, if proved, to defeat the plaintiff’s action, admitting for the purposes of the defense the facts stated in the complaint.
The allegations of the defense are: 1. The existence of an order by the railroad commissioners directing the defendant to remove its present grade crossing of Main street, and for that purpose changing the location of said crossing to a point eighty feet southerly at the corner of Main and North Main streets, and directing the defendant to there build over Main street and adjoining North Main street a bridge with a wing or supporting abutment whose location is definitely fixed by the maps which are a part of the order. 2. The structure which the defendant threatens to build, as alleged in the complaint and shown on the maps contained in the complaint, is in exact accordance with the command of the commissioners contained in the order and the maps which are a part thereof.
If these allegations of fact are denied and proved, a complete defense to the action is established. Instead of replying by denial or otherwise to the defense, the plaintiff [316]*316has demurred; and the action of the court in overruling that demurrer is the only error assigned in this appeal.
Before dealing directly with the demurrer we consider what seems to be the plaintiff’s conception of the fundamental defect claimed to be apparent in the second defense. It is this: An inspection of the record of the proceedings of the commissioners does not clearly indicate what portion, if any, of the land within the true limits of the highway is to be covered by the structure-authorized. This claim is true; but it must be distinguished from a claim confounded with it, that the record does not precisely indicate that portion of the surface of the land which the structure authorized is to occupy. The latter claim is not true. A map drawn to a scale locating the structure in accordance with distances from permanent and known monuments, describes its actual location as precisely as is possible. Such is the character of the map now in question. It purports to denote corners of permanent buildings, and the center line of the appellee’s present .location fixed by public authority and made a matter of public record. It is unnecessary that a map of a projected structure, of the nature of that which was the subject of the orders of the railroad commissioners, should be so drawn as to describe every possible monument in the vicinity of its site. It is enough if it describes such and so many that, when viewed upon the ground and in relation to the ground, a competent surveyor can ascertain the points at which to set his stakes. The presumption is that the board of railroad commissioners, one of whose members the law requires to be a civil engineer, has made no order for the construction of a public work which cannot be precisely executed. On demurrer the answers which set forth such an order were entitled to the support of that presumption.
The exact position of the land to be occupied being thus sufficiently shown, any statement in the order of the precise point where the actual line of North Main street crosses this land is immaterial to the sufficiency of the defense. The commissioners are dealing with the abatement of a nuisance; their authority to order such construction of a bridge as is [317]*317necessary to most thoroughly abate that nuisance is complete, including the power to occupy land covered by a highway. They have no authority to determine the disputed lines of a highway, and were not bound to do so in making the order. The defense set up is complete, whether the land the defendant is ordered to occupy is covered to the extent of one foot or of twenty feet by the easement of a highway. If the plaintiff, as guardian of that highway, thought its limits were unnecessarily encroached upon, it was its duty to appeal from the order. The legal exercise of discretion by the commissioners cannot be challenged in any other way.
But, in tiffs connection, the plaintiff claims that the record does not clearly show that the commissioners intended that any portion of the highway should be occupied. We think the record does clearly show that the commissioners made this location with a full understanding that the land occupied might be, and probably was, within the limits of this highway. Assuming that there must be an intention to appropriate the portion of the highway within the limits of the land designated, we think that intention sufficiently appears on the face of the record, which includes the order expressed in writing and in maps. The commissioners apparently decided that the structure described, covering the land defined, was necessary to the abatement of the nuisance, notwithstanding a portion of the land defined might be covered by the adjoining highway; and ordered the defendant to build that structure. This they had the power to do, and were not bound to first adjudicate the legal limits of that highway, and then, in addition to the limitation of the use of the highway necessarily involved in the location of the structure ordered, to formally condemn or discontinue as a highway a precise number of square feet; the decision made and the structure ordered, were a sufficient appropriation for that purpose, of such portion of the highway as actually covered land designated. It follows that when the defendant alleges the existence of this order, and that the structure it threatens to build, as alleged in the complaint, is in exact accordance with the order, it sets up a complete [318]*318and valid defense consistent with the truth of the essential allegations of the complaint. It alleges facts and not conclusions of law; it assumes the whole burden of proof properly belonging to it, i. e.,
Free access — add to your briefcase to read the full text and ask questions with AI
Hamebsley, J.
The complaint alleges that the defendant intends to build a bridge for carrying its railroad tracks over Main street at the corner of that street and North Main street (they being highways within the limits of the town of Bristol), and threatens to build a stone abutment in connection with said bridge, so as to encroach upon North Main street and occupy a strip thereof as shown by the annexed map marked Exhibit A; and claims an in[315]*315junction restraining the defendant from building any structure within the limits of North Main street. Exhibit A is a map drawn to a scale, purporting to be a, facsimile of the defendant’s plan and profiles for the abolition of the Main street grade crossing at Bristol, prepared and signed by its chief engineer.
The right of the plaintiff to ask an injunction arises from the duties imposed upon it by law, as the agent of the State, in the maintenance and care of these highways; and the defendant in its second defense sets up the paramount authority of the State, exercised through an order of the railroad commissioners, appropriating this portion of the highway as necessary for the abolition of a public nuisance endangering the lives of its citizens who use the highways.
The answer contains a first defense, in which each allegation of the complaint is either denied or admitted, and a second defense which purports to allege extrinsic facts sufficient, if proved, to defeat the plaintiff’s action, admitting for the purposes of the defense the facts stated in the complaint.
The allegations of the defense are: 1. The existence of an order by the railroad commissioners directing the defendant to remove its present grade crossing of Main street, and for that purpose changing the location of said crossing to a point eighty feet southerly at the corner of Main and North Main streets, and directing the defendant to there build over Main street and adjoining North Main street a bridge with a wing or supporting abutment whose location is definitely fixed by the maps which are a part of the order. 2. The structure which the defendant threatens to build, as alleged in the complaint and shown on the maps contained in the complaint, is in exact accordance with the command of the commissioners contained in the order and the maps which are a part thereof.
If these allegations of fact are denied and proved, a complete defense to the action is established. Instead of replying by denial or otherwise to the defense, the plaintiff [316]*316has demurred; and the action of the court in overruling that demurrer is the only error assigned in this appeal.
Before dealing directly with the demurrer we consider what seems to be the plaintiff’s conception of the fundamental defect claimed to be apparent in the second defense. It is this: An inspection of the record of the proceedings of the commissioners does not clearly indicate what portion, if any, of the land within the true limits of the highway is to be covered by the structure-authorized. This claim is true; but it must be distinguished from a claim confounded with it, that the record does not precisely indicate that portion of the surface of the land which the structure authorized is to occupy. The latter claim is not true. A map drawn to a scale locating the structure in accordance with distances from permanent and known monuments, describes its actual location as precisely as is possible. Such is the character of the map now in question. It purports to denote corners of permanent buildings, and the center line of the appellee’s present .location fixed by public authority and made a matter of public record. It is unnecessary that a map of a projected structure, of the nature of that which was the subject of the orders of the railroad commissioners, should be so drawn as to describe every possible monument in the vicinity of its site. It is enough if it describes such and so many that, when viewed upon the ground and in relation to the ground, a competent surveyor can ascertain the points at which to set his stakes. The presumption is that the board of railroad commissioners, one of whose members the law requires to be a civil engineer, has made no order for the construction of a public work which cannot be precisely executed. On demurrer the answers which set forth such an order were entitled to the support of that presumption.
The exact position of the land to be occupied being thus sufficiently shown, any statement in the order of the precise point where the actual line of North Main street crosses this land is immaterial to the sufficiency of the defense. The commissioners are dealing with the abatement of a nuisance; their authority to order such construction of a bridge as is [317]*317necessary to most thoroughly abate that nuisance is complete, including the power to occupy land covered by a highway. They have no authority to determine the disputed lines of a highway, and were not bound to do so in making the order. The defense set up is complete, whether the land the defendant is ordered to occupy is covered to the extent of one foot or of twenty feet by the easement of a highway. If the plaintiff, as guardian of that highway, thought its limits were unnecessarily encroached upon, it was its duty to appeal from the order. The legal exercise of discretion by the commissioners cannot be challenged in any other way.
But, in tiffs connection, the plaintiff claims that the record does not clearly show that the commissioners intended that any portion of the highway should be occupied. We think the record does clearly show that the commissioners made this location with a full understanding that the land occupied might be, and probably was, within the limits of this highway. Assuming that there must be an intention to appropriate the portion of the highway within the limits of the land designated, we think that intention sufficiently appears on the face of the record, which includes the order expressed in writing and in maps. The commissioners apparently decided that the structure described, covering the land defined, was necessary to the abatement of the nuisance, notwithstanding a portion of the land defined might be covered by the adjoining highway; and ordered the defendant to build that structure. This they had the power to do, and were not bound to first adjudicate the legal limits of that highway, and then, in addition to the limitation of the use of the highway necessarily involved in the location of the structure ordered, to formally condemn or discontinue as a highway a precise number of square feet; the decision made and the structure ordered, were a sufficient appropriation for that purpose, of such portion of the highway as actually covered land designated. It follows that when the defendant alleges the existence of this order, and that the structure it threatens to build, as alleged in the complaint, is in exact accordance with the order, it sets up a complete [318]*318and valid defense consistent with the truth of the essential allegations of the complaint. It alleges facts and not conclusions of law; it assumes the whole burden of proof properly belonging to it, i. e., the burden of proving the existence of the order and the identity of the structure it has threatened to build, as alleged in the complaint, with the structure it has been ordered to build; and it does not, as claimed by the plaintiff, allege facts that in any event can be held equivalent to a general denial, for it admits the allegation material to the plaintiff’s case, that the threatened structure is within the limits of the highway; and if the defendant fails to establish by proof the existence of the order and the identity of the structures, the admission of this fact entitles the plaintiff to judgment; if, on the other hand, the defendant does prove the facts it has alleged, then the fact admitted, material to the plaintiff’s case, becomes immaterial to the case the defendant has established, and whether the fact so admitted is in reality a fact or not, cannot affect the defendant’s right to a judgment.
“ All demurrers must distinctly specify the reasons why the pleading demurred to is insufficient.” General Statutes, § 873. Reasons for claiming the insufficiency of the second defense, not specified in the demurrer,' do not demand discussion. ' The plaintiff is not entitled to a reversal of the judgment because the trial court did not sustain the demurrer for reasons not specified. The first reason stated in the demurrer is too general to have any force. It is claimed, under the fourth reason, that the clause in the written portion of the order directing the building of a bridge over Main street “ with not less than twelve feet clear head room, with stone abutments located upon the street lines upon each •side and with supporting columns upon the gutter lines of the street,” controls the subsequent clause directing changes in North Main street, and contradicts and renders invalid that portion of the order contained in the maps which directs in detail the changes, to be made in North Main street and fixes the exact location .upon the surface of the land of the supporting wall or abutment to be there built. We do not so [319]*319read the order. The description of the bridge over Main street as one with abutments on the street lines and supporting columns on the gutter lines of that street, exhausts its force in describing the abutments and supporting columns mentioned, and that description cannot be construed as applicable to the portions of the order dealing with changes in other streets, nor as compelling a wing or supporting abutment on North Main street to be located upon the street line notwithstanding the portion of the order directing these changes locates with certainty the abutment in a different place.
Giving the widest allowable scope to the language of the two other reasons, they present in addition to the points already considered, only this claim: that the railroad commissioners had no power, in their order for the elimination of the grade crossing at Main street, to direct the abutment in question to be built within the lines of North Main street; and if they had such power they have not given such directions. If the commissioners had the power to order the erection of the abutment as described, covering a portion of the highway, it is immaterial to the sufficiency of the second' defense, for reasons already stated, whether or not the abutment ordered actually extends within the legal lines of North Main street. That they had the power under Chap. 220 of the Public Acts of 1889, to order any changes or alterations in highways, including their partial discontinuance necessary to the elimination of a dangerous grade crossing, of which necessity the commissioners are the judges, subject to a review of their proceedings on appeal to the Superior Court, and that the law conferring this power is constitutional, is too well settled to be now questioned. Suffield v. New Haven & N. Co., 53 Conn. 367, 370; Fairfield’s Appeal, 57 id. 167, 171; State’s Attorney v. Branford, 59 id. 402, 407; Cullen v. New York, N. H. & H. R. Co., 66 id. 211, 222; New York & N. E. R. Co.’s Appeal, 62 id. 527. An appeal was talien from the order in question to the Superior Court and the order was affirmed by that court, and the judgment of the Superior Court was affirmed by this court in the case [320]*320last cited. To all these proceedings the plaintiff was a party. So far as concerns this plaintiff the question of public safety and that of the necessity of occupying any portion of North Main street for-the elimination of the grade crossing as ordered, is res judicata. State's Attorney v. Branford, supra, p. 411.
The plaintiff suggests in argument that the course of proceedings by the commissioners, as recited in the order, lays no valid foundation for an order directing changes in North Main street. The record of the commissioners’ proceedings on its face seems sufficient to justify any necessary change in that highway, and being sufficient on its face, the question of some possible latent defect cannot be raised by tins demurrer, even if the plaintiff could raise it in any way other than by appeal.
The brief and argument of the plaintiff suggest that its real grievance is based on the assumption that the second defense in some way cuts off or abridges its right to establish upon trial the claim that whatever this order may apparently say, the commissioners did not in fact intend to authorize the occupation of any part of North Main street, and therefore did not authorize an abutment extending over the line of that street. We fail to see how this right, if the plaintiff has such a right, is in any way affected by the mode of pleading the second defense, or how the demurrer can be construed as specifying such a reason for the insufficiency of the pleading. If the plaintiff can in this action, or in any other action, attack the validity of the order, or establish a meaning not apparent on its face, because the order was made under a misapprehension of essential conditions, it certainly cannot do so by means of this demurrer.
We think the question raised by the demurrers to the second defenses to the first and second counts, do not materially differ; no claim was made- in argument that the same considerations did not apply to both demurrers.
There may be doubt whether the true theory of the Practice Act would not in a case like this require the defendant to allege the facts set up in the second defense, in connec[321]*321tion with those set up in the first, as a single defense, rather than to mate such facts the basis of a separate and distinct defense. The practical results of following either form maybe substantially the same, and any error in such a matter is waived if not specified in a demurrer. As the question is not material to our decision we merely mention the doubt, in order to avoid any implied approval of the form followed.
There is no error in the judgment of the Superior Court.
In this opinion the other judges concurred.