Hitch v. . Commissioners

This action was brought to recover damages for entering upon and injuring the plaintiffs' land. The complaint contained two causes of action, to each of which the defendant (575) demurred, but in the argument before us the plaintiffs' counsel abandoned the first cause of action, so that we are confined, in the consideration of the case, to the sufficiency of the second cause of action.

The plaintiffs alleged an entry upon the land, and it must be presumed that they intended to allege an unlawful or wrongful entry: otherwise they would not have been injured in a technical or legal sense. They further allege that they have been "damaged" by the entry and by the other acts committed by the defendants upon the premises. This word "damaged" is evidently intended to be used in the sense of the word "injured," which means in the law "the privation or violation of a right," something, in other words, for which an action will lie in behalf of the injured person. An actionable wrong, 3 Blk. Com., 2; Black's Dict., 624, "Injuria." Mr. Black says that an injury is "any wrong or damage done to another, either in his person, rights, reputation, or property." It seems, therefore, that under the second cause of action the plaintiffs, in an informal way, it may be admitted, allege an injury to their property rights, and the allegations will be deemed to constitute a cause of action for trespass, if no motion was made to make them more definite, or if they were not demurred to upon the ground of defectiveness of statement.

It is true, the plaintiffs do not allege that the entry and other acts were unlawful or wrongful or in violation of their rights, but those or equivalent words are implied when the defendant either answers to the merits or fails to ask that the complaint be made more definite and certain, or to demur for defectiveness of statement. It is well settled that in a case where the pleading is not framed with technical accuracy or something is lacking to constitute a good statement of a cause of action, the defect is waived by pleading to the merits or by not taking advantage of the defect in some proper way, and the defective pleading is (576) aided and the necessary averments will be supplied by the law. This very question was decided in Garrett v. Trotter, 65 N.C. 430, which was an action to recover land. The plaintiff, in that case failed to allege that the entry was unlawful or wrongful, and this Court held that the defendant, by answering or by not demurring, waived the defect, and under the doctrine of aider the plaintiff might proceed in the case as if the pleading had been correctly drawn. In the case at bar the defendants did not by demurrer point out the defect, and, if the complaint is not sufficient in its present form, under the liberal provisions of our present system of pleading, to constitute a good statement of a cause of action for trespass, it has become so by reason of the aid derived from the defendants' pleading. It is to be observed that not only do the defendants not take advantage of the supposed defect in the complaint, namely, that it is not alleged that the entry was unlawful or wrongful, but they expressly waived the defect, if there is any, and elected to treat the second cause of action in the complaint as one for trespass.

It comes, then, to this, that plaintiffs have sued the defendants in their corporate capacity for an unlawful entry and trespass upon their land, or rather upon the land of the plaintiff company, and demand that they recover damages for the same. The plaintiff either alleges a trespass in the second cause of action or no cause of action at all is alleged. If the defendants entered unlawfully and wrongfully upon the land, it was a trespass; and if they entered lawfully, they are not liable to the plaintiff for any damages. If no cause of action is alleged, the demurrer was properly sustained, and if the plaintiff alleges a cause of action for trespass the judgment of the court was also right, because this Court has recently held that counties cannot be sued for trespass upon land (577) or for the commission of any other tort in the absence of a statutory provision giving a right of action against them in such cases. This is no new principle, as will appear by reference to the cases cited in the opinions of this Court. The reasons for the doctrine are therein fully and clearly set out and need not be repeated. Jones v.Commissioners, 130 N.C. 451.

The plaintiff does not allege that there has been any condemnation of the land for the purpose of constructing a public road and an assessment of damages, which by the statute (The Code, sec. 2040) are made a county charge. If the county authorities have taken the land of the plaintiff company for public purposes, it should be compensated, but in the way pointed out by the law. If there has been a condemnation of the land, the plaintiff can recover the amount assessed in its favor, and if the defendants have entered upon the land without authority of law, the members of the board are individually liable for their wrongful acts. In any view of the case, as now presented to us, we think the judge below was right in sustaining the demurrer.

PER CURIAM. No error.