Pearce v. . Privette

Winborne, J. Did the court below err in sustaining the demurrer? Ve think so. “The office of demurrer is to test the sufficiency of a pleading, admitting, for the purpose, the truth of the allegations of fact contained therein, and ordinarily relevant inferences of fact, necessarily deducible therefrom are also admitted, . . .” Stacy, C. J., in Ballinger v. Thomas, 195 N. C., 517, 142 S. E., 761; Andrews v. Oil Co., 204 N. C., 268, 168 S. E., 228; Toler v. French, ante, 360. Both the statute, C. S., 535, and decisions of this Court require that the pleading be liberally construed, and every reasonable intendment and presumption must be in favor of the pleader. It must be fatally defective before it will be rejected as insufficient. Blackmore v. Winders, 144 N. C., 212, 56 S. E., 874; Brewer v. Wynne, 154 N. C., 467, 70 S. E., 947; Hartsfield v. Bryan, 177 N. C., 166, 98 S. E., 379; Public Service Co. v. Power Co., 179 N. C., 18, 101 S. E., 593; Farrell v. Thomas & Howard Co., 204 N. C., 631, 169 S. E., 224; Scott v. Ins. Co., 205 N. C., 38, 169 S. E., 799; Anthony v. Knight, 211 N. C., 637, 191 S. E., 323; Toler v. French, supra. Applying these principles to the allegations of the petition, when read in connection with the provisions of C. S., 3836, under which petitioners are proceeding, a cause of action is sufficiently alleged. C. S., 3836, provides in part in so far as it is here pertinent: “If any person . . . shall be engaged in the cultivation of any land ... to which there is leading no public road or other adequate means of transportation affording necessary and proper means of ingress thereto and egress therefrom, such person . . . may institute a special proceeding as *504 set out in tbe preceding section and if it shall be made to appear to the court necessary, reasonable and just that such person shall have a private way to the public road . . . over the lands of other persons, the court shall appoint a jury of view ... to view the premises and lay off a cartway . . .” The demurrer appears to be predicated upon the theory that petitioners are asserting a vested right in and to the road which petitioners allege defendants have “barricaded and blocked.” Such is not the case. Petitioners allege that this old road has been used for fifty years, and they invite defendants to open it to their use, but, if not, then they pray that a cartway be laid off in accordance with the statute, C. S., 3836. For this purpose, when liberally interpreted, the allegations of the petition are sufficient. The judgment below is Reversed. Seawell, J., took no part in the consideration or decision of this case.