Bolick v. City of Charlotte

• Decision Date: 28 April 1926
• Docket Number: 461.
• Citation: 132 S.E. 660,191 N.C. 677
• Parties: BOLICK v. CITY OF CHARLOTTE.
• Court: North Carolina Supreme Court

132 S.E. 660

191 N.C. 677

BOLICK v. CITY OF CHARLOTTE.

No. 461.

Supreme Court of North Carolina

April 28, 1926

Appeal from Superior Court, Mecklenburg County; Bryson, Judge.

Action by J. H. Bolick against the City of Charlotte. From a judgment overruling a demurrer to the complaint, defendant appeals. Affirmed.

Civil action to recover damages for injuries to plaintiff's land, alleged to have been caused by the negligent discharge of sewage by defendant, a municipal corporation, into Sugar creek, which flows over and along the lands of plaintiff. Defendant demurred to the complaint, for that it is not alleged therein that plaintiff prior to the commencement of the action gave to defendant notice of the alleged injury and his claim for damages, as required by section 15, chapter 251, Private Laws of 1911. From judgment overruling demurrer and allowing defendant time to answer, defendant appealed to the Supreme Court.

C. A Cochran, Cansler & Cansler, and Taliaferro & Clarkson, all of Charlotte, for appellant.

T. L Kirkpatrick, H. L. Taylor, Jas. A. Lockhart, and Preston & Ross, all of Charlotte, for appellee.

PER CURIAM.

Defendant by its demurrer to the complaint, on the ground that the facts stated therein are not sufficient to constitute a cause of action against defendant, relies upon the provisions of section 15, chapter 251, Private Laws 1911, entitled "An act to amend the charter of the city of Charlotte." There is no reference in the complaint to said Private Act of the General Assembly, nor is there an allegation therein that defendant is a municipal corporation by virtue of said Private Act. It is well settled that courts do not take judicial notice of private acts of the General Assembly. Parties to an action who rely upon such acts must plead and prove them. Reid v. Railroad, 78 S.E. 306, 162 N.C. 355; Corp. Com. v. Railroad, 37 S.E. 266, 127 N.C. 283; C. S. 541. Defendant cannot avail itself of the provisions of its charter, which is a private act of the General Assembly, by a demurrer to the complaint, in which said private act is neither alleged nor specifically referred to. Such provisions, if relied upon to defeat plaintiff in his action, must be set up in the answer as a defense. The demurrer of defendant is a "speaking demurrer"; it was properly overruled. Sandlin v. Wilmington, 116 S.E. 733, 185 N.C. 257; Cherry v. Railroad, 116 S.E. 192, 185 N.C. 90; Trust Co. v. Wilson, 108 S.E. 500, 182 N.C. 166;...