Sanders v. Atlantic Coast Line R. Co.

• Citation: 4 S.E.2d 902,216 N.C. 312
• Decision Date: 18 October 1939
• Docket Number: 239.
• Parties: SANDERS et al. v. ATLANTIC COAST LINE R. CO. et al.
• Court: United States State Supreme Court of North Carolina

4 S.E.2d 902

216 N.C. 312

SANDERS et al. v. ATLANTIC COAST LINE R. CO. et al.

No. 239.

Supreme Court of North Carolina

October 18, 1939

Civil action to recover damages resulting from the maintenance of a public nuisance allegedly created by the closing of a public street in the Town of Smithfield.

The plaintiffs own land on the east side of and adjacent to the right-of-way of the defendant, railroad company, and abutting on Massey Street, which street extends to the main part of the defendant town and is known as Johnson Street from the railroad west. There is a mercantile building and dwellings located on plaintiffs' property. Certain of the plaintiffs, trading as A. F. Sanders & Sons, conduct a mercantile business in the store building.

The defendant town, through its mayor and Board of Commissioners adopted a resolution approving the improvement designated by the State Highway and Public Works Commission as project No C. O. 270, for the construction of an underpass on east Market Street from Eighth Street crossing the railroad tracks to the city limits. In the resolution the town agreed to furnish the necessary right-of-way for the construction of said underpass and to close Massey Street and the old Goldsboro road at the respective crossings of the railroad company's track. Pursuant thereto the crossing at Massey Street was closed by the erection of posts and railings on both sides of the right-of-way of the defendant railroad company.

The plaintiffs, as owners of real estate bordering the defendant railroad's right-of-way on its east, and some of them as owners of the mercantile business, instituted this action to recover damages alleged to have been suffered by the closing of said grade crossing, alleging that the closing thereof constituted a public nuisance. Each defendant separately demurred to the complaint for the reasons set out in the demurrers, which appear of record. The Court below sustained each demurrer and entered judgment accordingly. The plaintiffs excepted and appealed.

Parker & Lee, of Smithfield, for appellants.

Ward Stancil & Ward, of Smithfield, for appellee Town of Smithfield.

Thomas W. Davis, of Wilmington, Abell & Shepard, of Smithfield and Rose & Lyon, of Fayetteville for appellee Atlantic Coast Line Railroad Co.

BARNHILL Justice.

It may be that, under a liberal interpretation, the original complaint could be construed as an action as against the town to recover compensation for an interest in real property taken by a governmental agency for public use. If so, any doubt in respect thereto is laid at rest by the amendment to the complaint in which it is alleged "that on account of the unlawful, wrongful and joint tortious conduct of the defendants in depriving the plaintiffs of their rights and easements in and to said part of said street as above set out, the defendant, the Town of Smithfield, in unlawfully authorizing the closing of said street, and the defendant, The Atlantic Coast Line Railroad Company, pursuant to said unlawful and void ordinance, in closing said street and totally obstructing the same and any traffic thereon in that part of it across the said defendant railroad company's right-of-way as above set out, said defendants have jointly, tortiously and unlawfully created a public nuisance to the great and particular and special injury of the plaintiffs in this action and thereby injured and practically destroyed the grocery business of the plaintiffs."

This allegation, together with the allegations in the complaint to the effect that the action of the Board of Aldermen of the Town of Smithfield, in adopting the resolution closing Massey Street, was ultra vires, makes it clearly appear that the plaintiffs are suing upon the theory of a joint tort committed by the defendants. In their brief the plaintiffs argue to the same effect. It is there stated: "The plaintiffs are calling upon the defendants to respond in damages to their property for their joint tort."

The defendant town's first cause of demurrer is that "the complaint with the amendment to complaint does not state facts sufficient to constitute a cause of action." The plaintiff challenges this assignment as being too general and indefinite. Their position in this respect cannot be sustained. The defendants' objection to the complaint is not to its form but to its substance. It does not assert that the complaint is a defective statement of a good cause of action, but that it is a statement of a defective cause of action. It admits all the facts set out in the complaint and challenges the sufficiency thereof to constitute any cause of action. This is the grounds for demurrer ore tenus and no other defects or deficiencies are required to be pointed out.

Did the town act ultra vires in authorizing the underpass and in closing Massey Street at the railroad crossing as a necessary part of the plan adopted, and did it, by closing...