Wilcken v. West Brooklyn Railroad

The plaintiff seeks to enjoin the defendants from running trains over a portion of the public street upon w'hich the plaintiff is an abutting owner, upon the ground that the defendants have never acquired the right to operate their road according to law, and that such operation of the railroad is a sufficient injury to the plaintiff. Technically, the plaintiff is right in her contention; but it is plain there cannot be much merit in the suit, and that the injury, if any, is slight. If the plaintiff purchased the property for the purpose of bringing a suit, such defense can only be raised by an answer. A demurrer admits all the facts, and upon such admission the only question raised is whether the complaint states facts sufficient to constitute a cause of action. The demurrer admits that the defendants have no valid authority to *792maintain a railroad in this street, and it follows that such occupation of the street is a nuisance, and any one specially injured thereby may have a remedy for its abatement. We think the allegations of the complaint are barely sufficient to show that the plaintiff is specially injured by the running of trains, and hence the demurrer was properly overruled. Judgment affirmed, with costs.