Short v. Nance-Trotter Realty, Inc. , 262 N.C. 576 ( 1964 )

138 S.E.2d 210 (1964) 262 N.C. 576

A. A. SHORT and wife, Mary A. Short,
v.
NANCE-TROTTER REALTY, INC., a Corporation, and Howard T. Nance and William H. Trotter, Individuals.

No. 236.

Supreme Court of North Carolina.

October 14, 1964.

Ray Rankin, Lloyd F. Baucom, Charlotte, for plaintiff appellants.

Louis A. Bledsoe, Jr., Joseph A. Moretz, Charlotte, for defendant appellees.

HIGGINS, Justice.

The complaint contains more than 19 pages of single-spaced type. It attempts to allege three separate causes of action. In the first cause the plaintiffs allege they are the owners and in possession of five described lots in the City of Charlotte by virtue of duly recorded deeds; that the defendants have wrongfully trespassed on said lots, grading and building a street, removing shrubbery and undergrowth to their damage in the sum of $15,000.00. As a second cause they allege they are the owners by adverse possession for more than 20 years of a portion of Chester Street at or near the five lots described in the first cause of action, and that the defendants have wrongfully trespassed on the street by grading and building a roadway, to their damage in the sum of $15,000.00. As a third cause of action the plaintiffs allege that the defendants, by construction of "a roadbed * * * which generally follows Chester Street, and partially * * * on lots 1 and 5 described in the first cause * * * removed several trees and bushes * * * and caused to be hauled on to plaintiffs' land * * * a large volume of dirt * * * that the defendants caused to be installed under said raised roadbed a culvert * * * 18 inches in diameter" which impounded and diverted surface water across plaintiffs' land to their damage in the sum of $15,000. The plaintiffs allege generally that the defendants' several acts of trespass were unlawfully, wilfully and intentionally committed, for which they are entitled to recover altogether $45,000.00 actual, and $50,000.00 punitive, damages.

The court committed error in sustaining the demurrer for misjoinder of parties and causes and thereafter allowing the plaintiffs to amend. A misjoinder of parties and causes requires dismissal of the action. Southern Mills v. Summit Yarn Co., 223 N.C. 479, 27 S.E.2d 289. Actually, the plaintiffs seem to have one cause of action for trespass. A plaintiff may bring an action in trespass, alleging he is the owner of described lands; that the defendant has committed acts of trespass thereon to his damage, and the amount thereof. Andrews v. Bruton, 242 N.C. 93, 86 S.E.2d 786; Norman v. Williams, 241 N.C. 732, 86 S.E.2d 593. Or, the plaintiff may allege he is in the lawful possession of described lands; that the defendant has committed acts of trespass against his possession to his damage, and the amount thereof. Matthews v. Forrest, 235 N.C. 281, 69 S.E.2d 553. In the latter case the plaintiff is not required to prove title, but only lawful possession and damages for interfering therewith.

In the light of the authoritative cases, it seems the plaintiffs should have alleged a single cause of action for trespass and the resulting damages. Hence there is neither misjoinder of parties nor causes. In the event of unnecessary parties, the remedy is by motion to dismiss as to them. If necessary parties are absent, they may be brought in by a motion, order, and the service of process. We suggest the plaintiffs may not have enough parties present to permit them to establish either ownership or lawful possession of Chester Street by adverse possession.

The plaintiffs appealed. The court order permits them to amend. The condition of their pleadings makes amendment necessary in order to avoid confusion at the trial. There is error in the court's holding that the pleadings show a misjoinder of parties and causes. Of this plaintiff appellants may not complain because of the permission and the necessity to amend. Otherwise, the order is

Affirmed.