Jones v. Town of Henderson

Walker, J., after stating the case: The law requires that we shall construe a pleading liberally for the purpose of determining its effect, with a view to substantial justice between the parties. Revisal, sec. 495. The plaintiff has alleged that the defendant, by its commissioners, has raised the sidewalk in front of his house 18 inches, and that this was done in [123] such a negligent and unskillful manner as to obstruct access to his premises and egress therefrom, and, further, that it was done unlawfully and wantonly. The plaintiff has the right of ingress to and egress from his lot, subject to the right of the town to grade and repair the street, provided it is done in a careful manner. If, on the contrary, the town, in the exercise of its authority to grade the street, including the sidewalk, proceeded with the work in a negligent and unskillful way, by reason of which the plaintiff’s property was injured, he is entitled to recover damages for the injury, simply because the town did not act in pursuance of its rightful authority to change the grade of the street, but exceeded it when it did the work in a negligent and unskillful manner. The law, in conferring the power to alter or change the grade of the streets, impliedly annexed as a condition that it should be carefully done, so as not to injure the property of private owners of lots. Whatever may be the law in other jurisdictions, the principle we have just stated has been firmly established by numerous decisions of this Court. The very question was considered and decided in the case of Meares v. Wilmington, 31 N. C., 13, in which it was intimated that, if the defendant had caused the grading to be done with ordinary skill and caution 'by erecting retaining walls to prevent any caving in of the plaintiff’s lot, so that the damage, if any, would have resulted, not from negligence, • but merely from the fact that, by reason of the grading, the lot was left higher above the level of the street, and so was more difficult of access, and therefore less valuable, the plaintiff would have been without remedy; for, as it was lawful for the defendants to do the work, if it was done in the proper manner, although the plaintiff was damaged thereby, it would be damnum absque injuña, and consequently give no cause of action, as to hold the defendant liable for exercising in a proper manner lawful authority vested in it by the sovereign, for the convenience of the public, would seem to involve an absurdity. And so, if [124] a lot is left too low by reason of grading the street, which is carefully done, the owner must submit to the inconvenience, under the elementary principle that individual interests must give way to the public convenience, which results from the ancient maxim that regard for the public welfare is the highest law, and, therefore, assent is implied on the part of every member of society that his own welfare shall, in cases of necessity, yield to that of the community in which he lives, and that any injury to his property committed lawfully in promotion of the public welfare is one of those incidental burdens to which all property in every civilized community is subject. Broom’s Legal Maxims (6th Am. Ed.), p. 2 el seq. But this does not mean that he must make an unnecessary personal sacrifice for the public good. If any work of public improvement can be carefully done without detriment to the owner of property, and it is negligently performed so as to injure the same, he is entitled to compensation, for then the local authorities have abused their power and committed a wrong as against him. They are protected by the law against suit only so far as they proceed in the discharge of their duty within the limit of the law. In this case the plaintiff alleges that the work was not carefully done, and that consequently his property was injured by obstructing his right of ingress and egress. This entitles him to sue and recover damages for the tort. Meares v. Wilmington, supra; Wright v. Wilmington, 92 N. C., 156; Wolf v. Pearson, 114 N. C., 621; Bunch v. Edenton, 90 N. C., 431; Dillon Mun. Corp. (4th Ed.), secs. 966, 967, 968. In Jones on Negligence of Mun. Corporations, sec. 146, the doctrine ife thus concisely stated: “While municipal corporations act in their judicial and governmental capacity in grading the public streets, they are yet bound in the performance of their work to exercise care not to injure others. They should consider the public interests upon the questions that come before them for decision as gov [125] ernmental bodies, and if any individual suffers damage because of tbeir decision or because of tbe lawful work that they do, be has no remedy, unless it be given him by statute. But his rights must be respected by the municipality, and if it trespasses upon his property, or if he is injured by its negligence in the doing of the work or by the negligent way in which the work is left, he may recover the damage he has suffered.” A distinction between a duty which is legislative or discretionary and one which is ministerial, with respect to the liability of a municipality in case of a breach of either, was considered by us in Hull v. Roxboro, 142 N. C., 453. The duty to repair streets and keep them in good condition is ministerial, and when the servants of the corporation undertake to perform this duty they must exercise reasonable .care, or the corporation will become liable for any injury to the owners of abutting property which is caused by their negligence. The subject is fully discussed and the conclusion of the courts stated in 2 Smith Mod. Law of Mun. Oorp., secs. 1206, 1207 and 1208. See, also, Hitchcock v. Mayor, 68 Md., 100; Barton v. Syracuse, 36 N. Y., 54; Rowe v. Portsmouth, 56 N. H., 291. AVe think the allegations of negligence in this case are sufficient as against a demurrer. The general rule is that, if thpre is any cause of action stated in the complaint, however in-artificially expressed, the demurrer will be overruled. Blackmore v. Winders, 144 N. C., 212; Caho v. Railway, ante, 20. If the defendant desired a more certain and definite statement of the alleged negligence in order that it might know the precise nature of the charge, and so that its answer might be fully responsive to the complaint, the proper remedy was by motion, under Reyisal, secs. 496, 509. See Allen v. Railroad, 120 N. C., 548; Railway Co. v. Main, 132 N. C., 445. The other grounds of demurrer are not tenable. The cor [126] porate character of the defendant, its _ powers and its duties with reference to the opening, improvement and repair of streets, appear from its charter, which is referred to in the complaint, and we think it is sufficiently alleged that the commissioners, although designated as “so-called,” were acting under and by virtue of authority from the defendant. "We will not now consider the question as to the plaintiffs right to discharge the surface water from his lot through drains, or conduits, into the side drains of the street, as the facts do not fully appear. Whether he has that right is too serious a question to be decided upon the meager statement of facts before us. The judgment of the court overruling the demurrer is approved, and the defendant will be allowed to answer or to proceed as it may be advised. No Error.