Murphy v. Bates , 21 R.I. 89 ( 1898 )

The declaration in this case is demurrable for the reason that it sets out only that the plaintiff was possessed of a certain right of way to and from her land over and upon a certain street or highway in said city of Pawtucket. The apparent scope of the declaration is for an injury to a private way. But ordinarily a private way becomes merged in a public way, and the plaintiff does not set out in what respect any private right has been violated, Ross v. Thompson, 78 Ind. 90; Elliot on Roads and Streets, 3 and 4. Although the demurrer is to certain pleas which set up the statute, Gen. Laws R.I. cap. 36, § 16, relating to injuries arising from defects in a highway, which would not be applicable to this suit, and to a plea setting up that the plaintiff had joined others with her as owners of the land in her notice to the city council, which in the opinion of the court does not bar her right to sue on such claim, still a general demurrer to the pleadings reaches back to defects in the declaration, and the court is therefore obliged on inspection of the declaration to pronounce it bad. Railton v. Taylor, 20 R.I. 279.