Keenan v. New Hanover County Com'rs

• Decision Date: 25 November 1914
• Docket Number: (No. 288.)
• Citation: 167 N.C. 356,83 S.E. 556
• Parties: KEENAN. v. NEW HANOVER COUNTY COM'RS et al.
• Court: North Carolina Supreme Court

83 S.E. 556

167 N.C. 356

KEENAN.

v.NEW HANOVER COUNTY COM'RS et al.

(No. 288.)

Supreme Court of North Carolina.

Nov. 25, 1914.

1. Counties (§ 146^*)—Torts of Officials— Liability.

A county is not liable for the torts of its officials, as the trespass of its commissioners, in the absence of statutory authority for action therefor against it or them in their official capacity.

[Ed. Note.—For other cases, see Counties, Cent Dig. § 212; Dec. Dig. § 146.*]

2. Judgment (§ 710*)—Admissibility in Evidence: —Judgment between Others.

For purpose of locating as between plaintiff and defendant, as regards a trespass by defendant, the boundary between their lands, judgment in an action by plaintiff against others, to which defendant was not a party, is inadmissible against defendant.

[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 1230; Dec. Dig. § 710.*]

3. Evidence (§ 553*)— Hypothetical Questions—Facts Not in Evidence.

A hypothetical question should not be permitted on evidence not at the time introduced; a promise to introduce it not being enough.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 2369-2374; Dec. Dig. § 553.*]

4. Trespass (§ 30*)—Persons Liable.

Defendant, owner of land adjoining plaintiff, having made a lease to others, is liable for their trespass on plaintiff's land only if his lease included some of plaintiff's land, or he authorized or ratified their trespasses, and received the proceeds thereof, and then only for such actual damages as was by his authority done to plaintiff's land.

[Ed. Note.—For other cases, see Trespass, Cent. Dig. § 69; Dec. Dig. § 30.*]

Appeal from Superior Court, New Hanover County; Allen, Judge.

Action by Thomas J. Keenan against the Commissioners of New Hanover County and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded, with directions.

This is a civil action, tried upon these issues:

(1) Is the plaintiff the owner in fee and entitled to the immediate possession of the lands and premises described in the complaint? Answer: Yes.

(2) Did the defendants wrongfully trespass upon and injure the plaintiff's property, as alleged in the complaint? Answer: Yes.

(3) What damages, if any, is the plaintiff entitled to recover against the board of commissioners of New Hanover county? Answer: $1,400.

(4) What damages, if any, is the plaintiff entitled to recover against the defendants in this action, other than the board of commissioners of New Hanover county? Answer: $1,400.

(5) Did the board of commissioners of New Hanover county enter upon and remove rock and other road building material from the plaintiff's lands under, by virtue of, and in pursuance to a lease or contract from I. B. Rhodes? Answer: Yes.

(6) Has the board of commissioners of New Hanover county paid the said I. B. Rhodes and his personal representatives in full for all the rock and road building material quarried from the plaintiff's land? Answer: Yes; up to February 1, 1914.

(7) Is the plaintiff's cause of action barred by the statute of limitations? Answer: No.

(8) What damages, if any, from pumping water across the plaintiff's land? Answer: $100.

J. O. Carr, Kenan & Stacy, and J. D. Bellamy, all of Wilmington, for appellants.

Ricaud & Jones and E. K. Bryan, all of Wilmington, for appellee.

BROWN, J. This is an action to recover damages against the board of commissioners in their corporate capacity, and also I. B. Rhodes, for entering upon the plaintiff's land and taking rock from his quarry. The defendant Rhodes leased to the board of commissioners certain lands containing a rock quarry, upon which the defendant board entered and quarried rock for the use of the county. This action is brought to recover damages from the county of New Hanover and I. B. Rhodes for the alleged wrongful trespass.

Can the action be maintained against the county for the tort of its officials? It is well settled that counties are instrumentalities of government, and are given corporate powers to execute their purposes, and are not liable for damages for the torts of their officials, in the absence of statutory provisions giving a right of action against them. White v. Commissioners, 90 N. C. 437, 47 Am. Rep. 534; Jones v. Commissioners, 130 N. C. 452, 42 S. E. 144; Hitch v. Commissioners, 132 N. C. 573, 44 S. E 30. In this last case, it is expressly held that:

"A county cannot be sued for trespass upon land or for any other tort, in the absence of Statutory authority."

How far the individual members of the board of commissioners or others, who may have committed the trespass, or directed or authorized it, may be liable is a question not before us. We are therefore of opinion that his honor erred in rendering judgment against the board of commissioners in their corporate capacity. The defendant Rhodes is joined as a codefendant with the commissioners, and is sought to be held liable upon the theory that he authorized the trespass and entry upon the plaintiff's lands and received the proceeds of the rock quarry thereon. The evidence tends to prove that the plaintiff and Rhodes owned adjoining lands; Rhodes owning a tract of upland, and the plaintiff owning a tract of lowland adjoining it.

It appears in the record that Rhodes leased on the 12th of June, 1907, in consider-ation of certain rents, specified in the written lease, to the board of commissioners certain tract of land just beyond and east of the city of Wilmington, adjoining Mill creek and Green's millpond on the east, situate in the township of Harnett, county of New Hanover, as far...