#### JOHN H. KENDALL et al. v. HIGHWAY COMMISSION OF VALLEYTOWN TOWNSHIP.

(Filed 27 May, 1914.)

Pleadings — Highway Commission — Trespass—Demurrer—Speaking Demurrer.

In an action for damages to plaintiff’s lands, tlie complaint alleged that tlie defendant liigliway commission unlawfully entered upon tlie plaintiff’s land with a large force of employees, teams, etc.; without notice, and unlawfully wasted and spoiled the same by digging great ditches, etc., to the plaintiff’s damage: Held, the cause of action alleged 'is trespass guare clausum fregit, which is admitted by demurrer; and where the demurrer relies upon a special statute, which has not been referred to in the complaint, it is a speaking demurrer, and in either event the demurrer is bad.

*601Appeal by plaintiff from Garter,. J., at January Term, 1914, OÍ Cl-LEEOKEE.

This is a civil action, beard upon complaint and demurrer. His Honor sustained tbe demurrer, and tbe plaintiff appealed.

M. W. Bell for plaintiff.

Dillard & Hill for defendant.

BeowN, J.

Tbe facts as alleged in'tbe complaint as a basis for tbe plaintiff’s cause of action are substantially as follows: Tbat Francis H. Kendall is dead, and left a last will and testament, tbe plaintiffs being appointed therein as executors and trustees. Tbat tbe bigbway commission is a corporation created, organized, and existing under tbe laws of North Carolina. Tbat for many years prior to bis death tbe said Kendall was tbe owner of Tract No. 20, on Yalley Fiver, containing 139 acres, more or less, which, by bis will, was devised to tbe plaintiffs, who were the owners thereof at tbe time of tbe injuries- complained of. Tbat on 1 December, 1912, and at different'times before and since, tbe defendant, without leave or license, and without authority of law, unlaiuftdly entered upon said tract, and with a large force of employees, teams and men, and without notice to plaintiffs, unlawfully wasted and spoiled said tract by digging great ditches and throwing up tbe earth to form into a fill entirely through tbe tract, which was rich bottom-land, thereby making boles of great length and depth on both sides of tbe fill, to tbe injury of tbe tract and damage to tbe plaintiffs; tbat by reason of tbe said digging of the ditches and boles and construction of tbe fill, tbe land next to tbe river is rendered inaccessible from other parts of tbe tract, which tract was valuable only as a farm before these things were done. Tbat by reason of such unlawful acts the.plaintiffs have been endamaged' in the sum of $1,000.

Tbe defendant interposes a demurrer as follows:

(1) For tbat tbe plaintiffs cannot have and maintain an action for a tort such as is set forth in tbe complaint in'this action against tbe bigbway commission of Yalleytown Town*602ship unless such right of action is given by statute, and there is no statute which gives the plaintiffs such right of action.

(2) For that whatever remedy the plaintiffs had was by petition for a jury to assess damages on account of the taking of the land described for a public road, as provided by chapter 161, Public-Local Laws 1911, and such remedy is exclusive, and this court has no jurisdiction of the action.

We think the judge erred in sustaining the demurrer. The important propositions of law relied upon by the defendant as a defense in this action cannot be raised by demurrer to the complaint as framed.

The demurrer admits, the truth of all the facts set out in the complaint, and can be sustained only when the defect appears upon the face of the complaint.

The plaintiff alleges a trespass upon its .lands and that it is unauthorized and unlawful. This is admitted by the demurrer.. The alleged cause of action is a trespass quare clausum fregit, and this is admitted by the demurrer. If there are facts which justify the acts of the defendant, they do not appear upon the face of the complaint. Davidson v. Gregory, 132 N. C., 389; Wood v. Kincaid, 144 N. C., 394; Merrimon v. Paving Co., 142 N. C., 539.

The second ground of demurrer is also untenable. It interjects an alleged act of the General Assembly, which is not referred to in the complaint. It is a speaking demurrer. Ward v. Kincaid, 144 N. C., 393.

If the defendant relies upon the defenses attempted to be raised by demurrer, they should be pleaded by answer. The demurrer is overruled and the defendant is directed to answer.

Error.