Buffalo, N. Y. & P. R. Co. v. Commonwealth

Citations

• 120 Pa. 537
• 14 A. 443
• 1888 Pa. LEXIS 509

Syllabus

<p>A writ of alternative mandamus charged that defendant railroad company had constructed their road-bed upon á certain public highway therein described and appropriated it to their exclusive use, and that by reason thereof it became the duty of the company forthwith at their own expense to cause the said highway to be reconstructed on the most favorable location and in as perfect a manner as the original road.</p> <p>In the return to said writ, the defendant admitted that it occupied a road “located as set forth in plaintiff’s petition,.....whether a duly ordained and authorized public road, this defendant does not know, and for the purpose of this suit denies, and asks that the relator may be compelled to prove the same,” and that they “forthwith and with the knowledge of the commissioners and proper road authorities, did cause the said road to lie reconstructed on the most favorable location and in as perfect a ma,imer as the original road, without objection by said commissioners and road authorities : ” On demurrer to the return, held:</p> <p>1. That the defendant was not obliged to traverse in the return any fact, or to answer for any breach of duty, not set out or assigned in the writ.</p> <p>2. That if the fact that the road occupied was a public road was not known to the defendant, there was no law or rule of practice which would oblige the defendant to answer that it was or tvas not.</p> <p>3. That the commonwealth had made its ease upon the specific matters of complaint assigned in the writ, and these matters having been directly denied and traversed as they were assigned, the issue was raised, and it was error to overrule the return, enter judgment for the plaintiff, and award the peremptory writ.</p>