Tucker v. Cheshire Railroad

Gtlchrist, C. J. The bill alleges that the damages assessed to Mr. and Mrs. Tucker, were not awarded as compensation for any injury to the orator’s franchise, but entirely for other and distinct property taken by the respondents. The answer states that Mr. and Mrs. Tucker, on the 8th day of May, 1847, occupied the land adjacent to the bridge on the east side of the river, and held it under the same right, and by the same title as the franchise of the bridge, and are believed to be the true and only proprietors of the land and bridge. This is excepted to as impertinent. The answer also states that the damages were assessed to them, as well for injuries sustained by them, as owners of the bridge and franchise, as of the land. [37] It is relevant to the case of the respondents to state that the assessment included the damages done to the franchise. This is responsive to the bill, and is not excepted to. But the statement that the franchise and land were owned in the same right, is explanatory of the averment that the assessment included the damages both for the franchise and the land, and shows the reason for it. The damages were thus included because the franchise and the land were owned in the same right. An exception to a part of an answer as impertinent, which refers to and explains the meaning of a schedule annexed to such answer, without also excepting to the schedule itself, must be disallowed. McIntyre v. Union College, 6 Paige, 240. If exceptions would mutilate the answer unnecessarily, by breaking up sentences or clauses which ought to stand or fall together, they should be disallowed. Franklin v. Keiler, 4 Paige, 382. We think that this exception must be disallowed. An exception for impertinence must be supported in toto, or it must fail altogether. Story, Eop PI. § 266. There is another ground for disallowing the exception. If Mr. and Mrs. Tucker owned the land and the franchise in the same right, there could be no reason for awarding the damages separately. If they owned the property in different rights, the damages should have been separated. The allegation is that they owned them in the same right. This is relevant. If made out in proof, it may dispose of the orator’s allegation that no damages were awarded for the franchise. By § 5, ch. 128, Rev. St., railroad commissioners are to-assess damages in the same way as road commissioners, and they, by ch. 51, § 2, are to proceed as selectmen do. By ch. 49, § 3, the selectmen are to give notice to the owner if known and resident in this state, otherwise to him who has the care and posses, sion of the land ; to the occupant. The answer states the belief of the respondents to be that Mr. and Mrs. Tucker were u the true and only proprietors and owners of the land and bridge.” [38] Amory and R. D. Tucker, the original trustees, having died, on the 21st day of May, 1848, the orator was made trustee. It appears that at the time when the respondents began to build their bridge, or to take the preliminary steps thereto, the legal title to the franchise was in Amory and R. D. Tucker, both of whom lived out of this state. It became necessary to allege that the orator and Mrs. Tucker, were the occupants, because the respondents desired to show the reason why the damages were assessed together, without specifying what was for each right; that is the right to the land and to the franchise. The second exception for impertinence ; is because the answer alleges that the mode of travel by railroad was not discovered and brought into use until after the grant to Hale. The court, in cases of impertinence, ought, before expunging the matter alleged to be impertinent, to be especially clear that it is such as should be struck out of the record ; for this reason, that the -error on one side is irremediable, on the other it is not. If the court strikes it out of the record it is gone, and the party may then have no opportunity of placing it there again; whereas, if it is prolix or oppressive, and is left on the record, the court, at the hearing of the cause, has the power to set the matter right in point of costs. Davis v. Cupps, 2 Younge & Coll. New Rep. 443; Story, Eq. Pl. § 268. If the fact stated is wholly immaterial, the answer may be excepted to for impertinence, or the complainant will have the benefit of the objection on the hearing. Clissold v. Powell, 2 Madd. Ch. 355; Spencer v. Van Duzen, 1 Paige, 566. It ought to be clear to demonstration that the matter complained of is impertinent, before that which if wrong, is irremediable, is done. Story, Eq. Pl. § 268. The court will always feel disposed to give the» answer a liberal consideration on this point of matter irrelevant, and to consider whether it can have any real and proper influence on the suit, having regard to the nature of it, as made by the bill. Woods v. Morrell, 1 Johns. Ch. 106. If the matter of an answer is relevant, that is, if it can have any influence whatever in the [39] decision of the suit, either as to the subject-matter of the controversy, the particular relief to be given, or as to the costs, it is not impertinent. Van Rensselaer v. Bruce, 4 Paige, 177; Hawley v. Wolverton, 5 Paige, 522. Applying, then, the principles recognized by these authorities to the question raised by this exception, it is evident that in order to determine the rights of the parties it may become necessary to inquire whether the bridge, proposed to be erected by the respondents, be a violation of the orator’s charter, and the exclusive privileges conveyed thereby. What kind of travel it is calculated to accommodate, how far the purposes it is designed to accomplish, are the same with those intended by the orator’s bridge, are matters which we may be called upon to examine. And in this view it is by no means clear that we may not find it proper to consider the allegation that railway communications were not brought into use until after the grant to Hale. Does a railroad bridge subserve the purposes for which the orator’s bridge was erected ? They are both bridges, that is, both are structures of wood, iron and stone, crossing the river. But although generically the same, the specific difference between them may be very great; so great that one may not be considered as infringing upon the province of the other. We shall, therefore, not allow the second exception for impertinence, but shall give the orator the benefit of it upon the final hearing of the cause. The other exceptions to the answer, are, that it is insufficient in omitting to state the knowledge, information, and belief of the respondents in relation to certain facts stated in the bill. The rule is that the respondents should state the point of substance, positively and certainly. No rule however, can provide for all the various difficulties in cases of this sort, but each case must be decided upon its own circumstances. Story, Eq. Pl. § 855. In general a respondent must answer “ as to his knowledge, information, and belief.” 2 Dan. Ch. Pr. 880; Woods v. Morrell, 1 Johns. Ch. 107. In this case Chancellor Kent says, that “As to facts not within his knowledge, he must answer as to his information, or belief, and not to his information or hearsay merely, without stating his belief one way or the other. [40] The general rules on the subject of exceptions to answers, are founded in good sense and sound justice, and they cannot be too well understood, nor too strictly enforced. If the respondent is not compelled to a full, frank, and explicit disclosure of every thing properly required of him, and resting in his knowledge, information, or belief, one of the most salutary ends of the jurisdiction of this court would be defeated. But if the matter be charged as within the respondent’s own knowledge, he must answer positively, and not to his information or belief only. Ibid.; Hall v. Hood, 1 Paige, 404. It is necessary, to the trial of the orator’s case, that it should be proved, whether the road commissioners were interested, and whether the respondent’s bridge -would be injurious, and the orator therefore has a right to the respondent’s best knowledge and belief. The answer is silent on both these points. The exceptions for insufficiency therefore must be sustained, and upon these points the respondents must answer further. The respondents contend that they are not bound to answer any particular matter charged in the bill, unless they are specially interrogated in relation thereto. But we do not apprehend the rule to be so. If there be enough to call for a full, and frank disclosure of the subject-matter of the bill, it will be sufficient. The respondents are bound to deny or admit all the facts stated in the bill, with all their material circumstances, without special interrogatories for that purpose. Plain sense, and a good conscience will, without any difficulty, in most cases teach a respondent how far it is requisite to answer to the contents of a bill, and to meet the gravamen alleged. Methodist Epis. Church v. Jaques, 1 Johns. Ch. 65.