An act passed in 1872 amending the charter of the city of New Britain, provided that its common council, whenever the sewerage of the city should in their opinion require it, might take and appropriate in such manner as they should deem expedient, any stream running in or through the city; the act providing for an assessment of damages to owners upon the stream, and concluding as follows: — "and said damages being paid or deposited as before provided, said city may go on to complete said public improvement, and do all acts necessary or convenient for that purpose without further liability in the premises." The common council took and converted into a sewer a stream running through the city, but did not have assessed, and did not pay, any damages to the plaintiff, through whose lands at some distance below the city the stream ran, and was rendered noxious and offensive by its pollution. Held in a suit for damages against the city — 1. That the legislature did not intend by the act, even if it had the power, to authorize the city to take the stream until it had paid all the damages it might thereby do to any individual. 2. That the city, not having made such payment, was liable for all damages it might have caused, as much as if the act had not been passed. The city in its defense, without denying any of the allegations of the complaint, alleged that the use which it was making of the stream was reasonable and proper and consistent with the rights of the plaintiff. Held to be demurrable, as stating only a conclusion of law, or of law and facts so blended that they could not he separated. The defense should have shown just what the city had done, so that the plaintiff might admit or deny and the jury be able to determine whether that was in fact what had been done, and so that the court might see whether such use of the stream was reasonable and proper and consistent with the rights of the plaintiff. The act of 1872 and the proceedings under it were matters in avoidance and were not admissible in evidence upon any issue formed by a general denial. An affirmative defense must always be pleaded.
ANDREWS, C. J.
The questions of law arising on the record which the defendant has presented on its brief for review, are these: —
1. Did the act of 1872 amending the charter of the city of New Britain intend to confer upon the city the right to use Piper's Brook for sewer purposes?
2. If it did so intend could the legislature lawfully confer such power?
3. Is it sufficiently alleged in the second defense that the action of the defendant in using the stream for sewer purposes was taken under that act?
4. Was the allegation in the amended answer that the use which the city was making of Piper's Brook was a natural, reasonable and proper one, and not inconsistent with the rights of the plaintiff, demurrable?
5. Should the act of 1872, and the proceedings taken under it by virtue of which it was claimed the plaintiff's rights in the stream were condemned, have been received in evidence, either as a defense or in mitigation of damages?
6. Was the request of the defendant that the jury should be told that the plaintiff would have a right of action against the defendant for damages accruing subsequent to the date of the complaint, properly refused?
We pass the first two of these questions without discussion. A decision upon either of them is not necessary for the disposal of the case. We assume for the purposes of the present case — and only for the purposes of the case — that both are to be answered in the affirmative.
However extensive the authority of the legislature may be, it is quite clear that the legislature of 1872 did not intend by the act of that year to grant to the city of New Britain the right to take Piper's Brook or any other stream for a sewer until the city should first pay all the damages it might thereby do to any individual. The constitutional prohibition against taking private property for public use without making just compensation therefor, was doubtless in the legislative mind. Careful provisions are contained in the act to this end. First, by agreement with the persons who may be damaged. And in cases where an agreement cannot be reached, the method by which to ascertain by judicial process the damages to any person is prescribed. The act makes the payment of all damages a condition precedent to the rights of the city to take any stream for a sewer. The language is clear: — "Said damages being paid or deposited in the city treasury, the city may go on and complete said public improvement, and do all acts necessary and convenient for that purpose, without further liability in the premises." Failing to make such payment the city continues liable for any and all damages it may have caused as if said act had not been passed.
It nowhere appears in the defense that the city had ever tried to agree with the plaintiff upon his damages, or had ever taken any steps to ascertain, by the method pointed out in the act or in any other way, what his damages were, or that it had ever paid to him his damages. We think then that it is not sufficiently alleged in the defense that the action of the defendant in using the stream for sewer purposes was taken under said act.
The second defense was in the nature of a special plea in bar. It undertook to be an answer to the whole complaint. It did not deny any of the allegations in the complaint, but purported to set up other facts by way of avoidance of the legal effect of the acts charged therein. As amended it was demurrable because it did not state facts but conclusions. It did not set forth what use the city was making of Piper's Brook, nor in what manner. It did not state any issuable facts; that is, facts which could be tried. To allege that the use which the city was making of the stream was reasonable, or natural, or proper and consistent with the rights of the plaintiff, without stating what that use was, or the manner of the use, was but the statement of a conclusion — a conclusion of law, or of law and fact so blended that they cannot be separated.
Matter of law is never to be pleaded in such way. This defense, in order to have withstood the test of a demurrer, should have set out just what the city had done with Piper's Brook, what use it was making of that stream, and its manner, so that the plaintiff might admit or deny, and that the jury might determine whether such use, and only such use, and in such manner, was in fact what had been done; and that the court might see whether such use was natural or reasonable or proper and not inconsistent with the rights of the plaintiff. Every special plea must contain issuable matter, for the plain reason that it would not otherwise be triable. On the same principle every special plea in which matter of fact and matter of law are so blended that they cannot be separated is ill. If therefore in trespass for false imprisonment the defendant pleads that he arrested the plaintiff by lawful authority, without showing what the authority was, the plea is bad as not being issuable. For a traverse of the plea would put in issue all matters of law as well as of fact which might conduce to show the defendant's authority; whereas matter of law is never issuable. The plea in such case ought to state the defendant's authority specially — not only that its legal sufficiency may be judged of by the court from the record, but also that the plaintiff may be enabled to traverse, distinctly, the matter of fact alleged in it. So also when the defendant, being bound by a condition to produce the plaintiff a sufficient discharge of a certain demand, pleaded that he had produced "a sufficient discharge," without stating its tenor or contents, the plea was held ill on the principles above stated. Gould's Pleading, chap. 6, sects. 96, 97; Pomeroy's Remedies, § 517; Chesbro v. Babcock, 59 Conn., 213.
The trial to the jury was upon the issue formed by the general denial. For the purposes of that trial the record did not contain the second defense or its amendments at all. The act of 1872 and the proceedings under it were not admissible in evidence upon that issue. That act and such proceedings would have been matter in avoidance. Such evidence is forbidden by section four of the practice act, (Gen. Statutes, § 875,) which provides that an affirmative defense must always be pleaded. Rice v. Grange, 131 N. York, 149.
Nor was there any error committed by the court in declining to consider the request for instruction to the jury. It was clearly within the discretion of the court to decline to notice that request at the time it was made. Besides, the same instruction had in substance been already given to the jury.