Jones v. Town of Henderson

• Decision Date: 18 March 1908
• Citation: 60 S.E. 894,147 N.C. 120
• Parties: JONES v. TOWN OF HENDERSON.
• Court: North Carolina Supreme Court

60 S.E. 894

147 N.C. 120

JONES v. TOWN OF HENDERSON.

Supreme Court of North Carolina

March 18, 1908

Appeal from Superior Court, Vance County; Neal, Judge.

Action by J. P. Jones against the town of Henderson. From a judgment overruling a demurrer to the complaint, defendant appeals. No error.

Where a complaint alleging negligence states a cause of action, the remedy of a defendant desiring a more definite statement of the alleged negligence is by motion, under Revisal 1905, § 496, to make the complaint more definite and certain, and not by demurrer.

This action was brought to recover damages for injury to the plaintiff's premises, situated on Poplar, or Charles street, by the improper construction of a granolithic sidewalk in front of the same. The plaintiff, after alleging the incorporation of the defendant as a town, with the usual powers to open and improve its streets, avers: "That in the year 1890 the plaintiff, having due regard to the long established and existing grade of Charles, or Poplar, street, erected upon his lot a residence at great cost to himself, and at additional great cost constructed drain pipes or conduits for delivering the surface or rain water from his residence and lot into the side drain of said street. That said pipes or conduits were sufficient to keep his lot well drained and his home free from dampness." He further alleges substantially, that the defendant constructed a sidewalk in front of his lot without exercising proper care or caution and contrary to the plan, specifications, and recommendations of its own engineer, which it had formally adopted for grading and improving its streets, and against the plaintiff's protest, and without regard to the injurious effects which it was easily able to foresee, and that the defendant thereby impaired and obstructed the said drain pipes or conduits and his right of ingress and egress with respect to his said lot and his residence thereon, and that he was thus deprived of the free use and enjoyment of his property. The plaintiff more particularly alleges that the defendant "unlawfully, wantonly, carelessly, negligently, unskillfully, improperly, and incautiously caused earth to be piled in front of his property, the entire front of his said lot, to a depth of from 14 to 18 inches, upon which it unlawfully, wantonly, carelessly, negligently, unskillfully, improperly, and incautiously constructed a so-called sidewalk of cement and stone called granolithic, which is 18 inches in height and forms an obstruction to his ingress to and egress from said dwelling house and lot, and also left the mouth or place of discharge for said drain pipes 18 inches below said embankment, thereby causing said drainage or surface water to dam or pond upon plaintiff's yard, thus rendering plaintiff's lot less healthy and less desirable as a place of residence." And, further, that the defendant did "arbitrarily and capriciously and unjustly, without notice to the plaintiff, and in disregard of the law of the land, deprive and disseise the plaintiff of his property by building said obstruction of earth, cement, and rock in front of his said lot, and prevent his free access to and egress from said house and lot, destroying his long-established drainage." There are other allegations in the complaint of substantially the same nature, but it is unnecessary to set them forth. The plaintiff, having alleged that he had been damaged in the sum of $1,250, prayed judgment for that amount.

The defendant filed a demurrer to the complaint, the material parts of which are as follows: "That the plaintiff has failed to allege: (1) That he has any right or easement to discharge the surface or rain water from his premises through drain pipes or conduits to the street drains, or that it was the natural drainage of plaintiff's land. (2) That the defendant has done any act or thing except to raise the grade of the sidewalk on the street in front of plaintiff's residence and construct thereon (a pavement), a duty required to be performed by the defendant in such manner as it might deem best for the interest of the community, and that all the injuries of which plaintiff complains result from the fact of such grade being raised, and not from the manner of doing the work. (3) In what respect defendant was negligent, careless, wanton, or unskillful, nor in what respect it improperly, incautiously, or unlawfully caused to be performed the work complained of, nor is there in the complaint any allegation of any injury resulting to plaintiff from any cause other than raising the grade of the sidewalk, which was a matter resting in the discretion of the defendant." The other grounds of demurrer are mentioned in the opinion of the court. From the judgment of the court overruling the demurrer, the defendant appealed.

T. T. Hicks, A. C. Zollicoffer, and T. M. Pittman, for appellant.

B. H. Perry, J. C. Kittrell, and A. J. Harris, for appellee.

WALKER J.

The law requires that we shall construe a pleading liberally for the purpose of determining its effect, with a view to substantial justice between the parties. Revisal 1905, § 495. The plaintiff has alleged that the defendant, by its commissioners, has raised the sidewalk in front of his house 18 inches, and that this was done in such a negligent and unskillful manner as to obstruct access to his premises and egress therefrom, and, further, that it was done unlawfully and wantonly. The plaintiff has the right of ingress to and egress from his lot subject to the right of the town to grade and repair the street, provided...