Floyd v. Turner

Wheeler, C. J. The injunction appears to have been rightly dissolved upon the answer. But upon the motion to dismiss, the court could only look to the petition. That presents the case of an attempt to lay out and establish a road through the plaintiff’s farm and improvements, to his great injury, without first having complied with the requirements of the law, in such cases. (Act 4th February, 1852, Pamph. Laws, 36, ch. 34, §§ 6, 7, 8, 9.) The motion to dismiss, is in the nature of a demurrer, and .admits the truth of the petition for the purpose of considering its legal sufficiency. If true, the plaintiff was entitled to relief, and the court erred in dismissing the petition; for which the judgment must be reversed, and the cause remanded. Reversed and remanded.