Hodges v. Wilmington & W. R. Co

• Decision Date: 24 February 1890
• Court: North Carolina Supreme Court
• Parties: Hodges v. Wilmington & W. R. Co.

10 S.E. 917

(105 N.C. 170)

Hodges

v.Wilmington & W. R. Co.

Supreme Court of North Carolina.

Feb. 24, 1890.

Action—Joindek of Causes.

Under Code N. C. § 267, providing that several causes of action may be united in the same complaint where they all arise out of contract, injuries, etc., but that all must belong to one of the classes named, a cause of action for injuries to plaintiff's land and crops by the erection of defendant's road-bed and embankment, whereby the water is ponded back on the land, cannot be joined with a cause of action for defendant's failure to comply with its statutory duty to erect cattle-guards, whereby cattle have trespassed on plaintiff's land and damaged his crops, as the first is for tort, while the second arises on an implied contract.

Appeal from superior court, Harnett county; Armfield, Judge.

Action by G. R. Hodges against the Wilmington & Weldon Railroad Company. A demurrer to the complaint was overruled, and defendant appeals.

T. H. Sutton, for appellant.

F.P.Jones, for respondent.

Clark, J. The complaint alleges that by reason of the road-bed of defendant erected over plaintiffs' land the water was ponded back, water-soaking his land, and damaging his crops; and, secondly, that it was the duty of the defendant to erect good and sufficient cattle-guards at the pointsof entrance and exit of its track from plaintiff's inclosed land, and by reason of failure to comply with such duty stock had passed into plaintiff's inclosure, and damaged his crops; thirdly, that the building of defendant's road-bed and embankment had turned the natural flow of the water, causing deep gullies to be washed in plaintiff's land. The defendant demurred for misjoinder of causes of action, upon the ground that the alleged-breach of the duty imposed by statute of keeping up sufficient cattle-guards was upon an implied contract, and could not be joined with the other causes of action, which were for injuries to real property. A cause of action for tort cannot be joined in the same action with a cause of action upon contract, unless they arise out of the same transaction, or transactions connected with the same subject of action. Such is not the case here. The first and third causes of action allege injury to real property by reason of the erection of the defendant's embankment and road-bed. This is the transaction which is the subject of the action. The other cause of action has no necessary connection therewith. It existed whether defendant had erected an embankment or not, and was for failure of plaintiff to put up cattle-guards at the points where defendant's track passed through plaintiff's inclosure. In the absence of legislation, there was no duty imposed upon defendant to put up such cattle-guards. Had this second cause of action arisen from wrongfully piercing plaintiff's line of fence, and thereby turning in cattle, unless fenced out by plaintiff, this would have been a tort. But, so far from that,...