Atlantic C. L. Ry. Co. v. Harwell

WALKER, P. J. By the pleas of the defendant which, on motion of the plaintiff, were stricken, the former undertook to set up its acquisition by adverse user for more than 10 and 20 years, respectively, of the right to maintain on its premises the condition of things of which the plaintiff complained as a private nuisance. In this court it is not open to question that one may in that way acquire a prescriptive right to maintain a private nuisance. — Alabama Consolidated Coal & Iron Co. v. Turner, 145 Ala. 639, 651, 39 South. 603, 117 Am. St. Rep. 61; Nininger v. Norwood, 72 Ala. 285, 47 Am. Rep. 413; Stein v. Burden, 24 Ala. 148, 60 Am. Dec. 453; Miles City v. Board of Health, 25 L. R. A. (N. S.) 589, 591, note; 29 Cyc. 1206. A plea Avhich is not unnecessarily repeated and is not unnecessarily prolix, irrelevant, or frivolous cannot properly be gotten rid of by the summary method of a motion to strike. If it is free of the faults mentioned, a plaintiff who desires to complain of it as defective in some matter of substance in that which is set up as a defense is put to his demurrer, in which he must specify the matter of substance in which the plea is claimed to [591] be defective, distinctly stating the objection or objections to it. — Brooks v. Continental Ins. Co., 125 Ala. 615, 29 South. 13; Troy Fertilizer Co. v. State, 134 Ala. 333, 32 South. 618; Alabama Great Southern R. Co. v. Clark, 136 Ala. 450, 34 South. 917; Mobile Electric Co. v Sanges, 169 Ala. 341, 53 South. 176, Ann. Cas. 1912B, 461; Code, §§ 5322, 5340. Neither of the stricken pleas was subject to the charge of prolixity or of being an unnecessary repetition. Nor was either of them subject to be stricken because it was irrelevant or frivolous, as each of them undertook to show that the defendant had acquired the right to do the thing of which the plaintiff complained by an adverse use of its property in a way specified for a length of time sufficient to confer such a right. If the state of facts averred in either of the pleas was by the plaintiff claimed to be in any respect insufficient to constitute a defense to the action, the supposed insufficiency in a matter of substance should, have been availed of by a demurrer, specifically stating the grounds: of objection relied on. A defendant is entitled to have-this method pursued when it is the only appropriate one of raising the objection which is relied on, as by the pursuit of it anything which is claimed to be a substantial defect in his plea is distinctly pointed out, and, if the objection is held to be well taken, the opportunity of removing it by amendment is afforded. Of this right the defendant was deprived by the action of the court in sustaining the plaintiff’s motion to strike the pleas referred to. It was not open to the defendant to prove under its: plea of the general issue the facts averred in the pleas-which were stricken. Neither of those pleas put in issue any averment of .the complaint. They impliedly confessed those averments, and sought to avoid the ef [592] fect of them by setting up new matter, which could be availed of only under a special plea. — Kansas City, Memphis & Birmingham R. R. Co. v. Crocker, 95 Ala., 412, 427, 11 South. 262. The record does not, by showing that there was another plea under which the matters averred in the stricken pleas could have been proved, make it appear that the appellant was not injured by the striking of its special pleas. Reversed and remanded.