Hunt v. West Jersey Traction Co.

Grey, Y. C. It appears to be a settled rule in equity pleading that when a complainant replies to a plea, taking issue on it, the determination of that issue is a final disposition of the suit as between the party filing the plea and the complainant who joins issue thereon. [229] Flagg v. Bonnel, 2 Stock. 84, citing cases. The court does not inquire into the materiality of the facts set up in the plea. If their truth be established by the proofs, the complainant’s bill must be dismissed as to the defendant who files the plea, although the matters stated in the plea contain, in fact, no valid defence 'to the suit. If the defendant fails to prove the truth of the plea at the hearing, the plea will be overruled as false, and the complainant will be entitled to a decree according to his case as stated in the bill. Ib. 85; Miller v. United States Casualty Co., 16 Dick. Ch. Rep. 101. The inquiry in this ease has, by the pleadings of the parties themselves, been limited, so far as the complainants’ right to relief against the defendant the Haddonfield and Camden Turnpike Company is concerned, to the ascertainment whether all the allegations of fact set forth in the plea have been shown by the evidence to be true. The testimony submitted was wholly on the part of the turnpike company, the complainants offering nothing in contradiction. The question is, therefore, again limited to the inquiry whether the testimony submitted by the turnpike company sufficiently shows that the facts alleged in the plea upon which issue has been joined are true. The complainants, by joining issue on the plea, have'themselves chosen to test their right to relief against the defendant turnpike company by the truth or falsity of the facts set up in the plea. The secretary of the defendant the Haddonfield and Camden Turnpike Company was called as a witness, and produced the minute-book of that company. Hpon these minutes it appears that at an adjourned stated meeting of the board of directors of the company, held October 3d, 1893, the turnpike company gave its consent for the use of its turnpike road to the West Jersey Traction Company and its assigns, and the president and secretary of the turnpike company were authorized to execute, under the seal of that company, an agreement to that effect, which is set forth at length in the minutes of that company produced in evidence. The minutes also show that the president of the turnpike company reported to a stated, meeting of its board, held March 10th, 1894, that the contract of eon230 sent had been executed and delivered in accordance with the direction given at the meeting of October 3d, 1893. The contract itself was produced in evidence. It is dated February 19th, 1894, and by it the turnpike company agreed that the traction company, its successors and assigns, “shall at any time hereafter have the use of the said road or highway, for the purposes of constructing, maintaining and operating its line of railway, with proper turnouts and switches, as now located, or as may be hereafter located, of not more than two lines of track, and of erecting, maintaining and using poles, wires and other devices and appliances for the transmission or application of motive power for the operation of trolley or horse cars.” The testimony of the secretary of the company also shows that the stock of the complainants Clement and Ifunt was transferred to them at the dates narrated in the plea, and that since the making of the consent there have been a number of stockholders’ meetings of the turnpike company, and that neither the complainants nor those under whose transfer they hold their stock, at any subsequent stockholders’ meeting of the turnpike company, have ever objected to the action of the board of directors in consenting to the use of the turnpike road, as stated in the plea. This recital of the evidence shows that all of the matters set up as.a defence in the plea have been shown, by the testimony, to be true. The complainants insist that the plea fails as a defence upon two grounds—first, that the act of March 14th, 1893, did not authorize the agreement of consent set forth in the plea, because section 135 of that act (Gen. Stat. p. 3241) provides that the trolley corporations shall acquire the property of a turnpike company by lease, and the consent agreement is not a lease; secondly, because there is no proof that the West Jersey Traction Company, to whom and its assigns the consent was given, has ever assigned the privileges granted to the Camden and Suburban Railway' Company, who, the complainants allege, are now in possession. As to the first ground, the plea upon which the complainants have seen fit to join issue, did not allege any lease, but did aver that there was a consent. If the complainants were of opinion that a consent was an insufficient defence, they should have [231] sought to have the plea overruled. Having joined issue on it, the only question to be determined is its truth. See cases above cited. If, however, it be admitted that the sufficiency of the facts pleaded may be examined as a matter of law, it will be found that section 135 does not prescribe that a trolley company desiring to use the property of a turnpike company must acquire it by lease. The words of section 135 of the act are “that any corporation created under this act may lease the property and franchises of any other corporation owning or operating any * * * turnpike or plank road,” &c. This section authorizes a leasing, but does not require it. If there be a leasing, the trolley company may exercise the franchises of the turnpike company, and it would then be charged with the performance of the corresponding corporate duties of the lessor turnpike company. This section contemplates a complete transfer of the franchises and property of the turnpike company to the trolley company—a condition of things not alleged in the plea nor appearing by the proofs to have happened. The complainants appear to have overlooked the express provision of section 130 (Gen. Stat. p. 3238) of the Trolley act, which gives full power to a trolley company to use, for the purpose of its railway, “so much of the area of any highway along which any turnpike or plank road shall be built and in use, as shall be necessary for such purposes; provided, that the consent of the corporation owning such turnpike or plank road * * * shall have first been obtained.” It was under this section (130) that the consent of the Haddonfield and Camden Turnpike Company for use of part of its turnpike road was given, as set forth in the plea. As to the second ground of objection to the defence made by the plea, that there is no proof that the West Jersey Traction Company has ever assigned to the Camden and Suburban Eailway Company, now in possession, the privileges granted it by the turnpike company, it is enough to say that there is no allegation in the plea that the West Jersey Traction Company did so assign the privileges granted. The defendant was therefore not called [232] •upon to make proof of any such assignment in support of its plea. The objection is a challenge of the sufficiency of the plea, and not of its truth. The complainants have admitted the suffi•ciencj’ of the plea by joining issue upon it. Upon the whole case presented by the issue joined on the plea •of the Haddonfield and Camden Turnpike Company, it must be held that the plea is sustained by the proof. The defendant turnpike company is therefore, in accordance with the doctrine laid down in the cases above cited, entitled to have the bill dismissed, with costs, as to that defendant. I will advise such a decree.