Latham v. Pasquotank Highway Commission

• Decision Date: 28 February 1923
• Docket Number: 11.
• Citation: 116 S.E. 85,185 N.C. 134
• Parties: LATHAM v. PASQUOTANK HIGHWAY COMMISSION ET AL.
• Court: North Carolina Supreme Court

116 S.E. 85

185 N.C. 134

LATHAM v. PASQUOTANK HIGHWAY COMMISSION ET AL.

No. 11.

Supreme Court of North Carolina

February 28, 1923

Appeal from Superior Court, Pasquotank County; Connor, Judge.

Action by J. W. Latham against the Pasquotank Highway Commission and others. From an order sustaining defendants' demurrer to complaint, plaintiff appeals. Reversed.

It is not the function of a demurrer to allege facts and, upon that allegation, to challenge the adversary's legal rights, or the validity of his claim, which is called a "speaking demurrer," but its sole purpose is to take the facts as they are stated, and then to question their sufficiency to authorize the relief demanded, if directed against a complaint, or the soundness of the defense if against an answer.

Geo. J Spence, of Elizabeth City, for appellant.

Attorney General Manning and Walter L. Cohoon, of Elizabeth City, for appellee State Highway Commission.

W. L Small and J. C. B. Ehringhaus, both of Elizabeth City, for appellees Pasquotank Highway Commission and Higgs.

WALKER J.

This is in form and substance an action of trespass for unlawfully and wrongfully entering upon the plaintiff's land and injuring and damaging the same, and of unlawfully and wrongfully appropriating a part of the land to their own use. That, while thus in the unlawful possession of the said land defendants wrongfully and tortiously committed certain depredations thereon, which were greatly injurious to it. That they changed the natural flow of the water on the land in the ditches and caused water to accumulate and be dammed or retained thereon, and forced water from other lands in upon the plaintiff's tract of land, and caused the water thus unlawfully cast upon this land to sob, soak, and sour the same, and have further caused the water unlawfully thrown upon plaintiff's land to overflow the same so that the crops on it were destroyed and the land rendered valueless for the purpose of cultivating and producing crops upon it or for being put to the uses for which it was adapted. We have expressed it in language somewhat different from that employed in the complaint, but with perfect accuracy, there being not the least deviation from the substance, and legal effect of it all.

It is apparent that plaintiff has, and intended to allege, barely an unlawful trespass upon his land, and a wrongful taking and detention of a part thereof, and, this being so, the questions raised and discussed in the case before us and in the briefs are not presented. If the defendants desired to raise solely those questions as to their liability to be sued for acts committed by them in behalf of the state, as its...