{ "id": 11272639, "name": "THOMAS J. KEENAN v. COMMISSIONERS OF NEW HANOVER COUNTY and I. B. RHODES", "name_abbreviation": "Keenan v. Commissioners of New Hanover County", "decision_date": "1914-11-25", "docket_number": "", "first_page": "356", "last_page": "359", "citations": [ { "type": "official", "cite": "167 N.C. 356" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "161 N. C., 496", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "132 N. C., 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660483 ], "opinion_index": 0, "case_paths": [ "/nc/132/0573-01" ] }, { "cite": "130 N. C., 452", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "90 N. C., 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8696709 ], "opinion_index": 0, "case_paths": [ "/nc/90/0437-01" ] } ], "analysis": { "cardinality": 431, "char_count": 8521, "ocr_confidence": 0.457, "pagerank": { "raw": 1.334211182702904e-07, "percentile": 0.6297998454736164 }, "sha256": "1b59d7d7109f05523ba212d40408b0db47455f7d59c9a188a07a11973c9ee94c", "simhash": "1:d678df78d02ac589", "word_count": 1434 }, "last_updated": "2023-07-14T20:55:31.572596+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THOMAS J. KEENAN v. COMMISSIONERS OF NEW HANOVER COUNTY and I. B. RHODES." ], "opinions": [ { "text": "BbowN, J.,\nafter stating the case: This is an action to recover damages against the board of commissioners in their corporate capacity, and also I. B. Rhodes, for entering upon the plaintiff\u2019s land and taking rock from his quarry.\nThe defendant Rhodes leased to the board of commissioners certain lands containing a rock quarry, upon which the defendant board entered and quarried rock for the use of the county. This action is brought to recover damages from the county of New Hanover and I. B. Rhodes'for the alleged wrongful trespass.\nCan the action be maintained against the county for the tort of its officials ? It is well settled that counties are instrumentalities of government, and are given corporate powers to execute their purposes, and are not liable for damages for the torts of their officials in the absence of statutory provisions giving a right of action against them. White v. Comrs., 90 N. C., 437; Jones v. Comrs., 130 N. C., 452; Hitch v. Comrs., 132 N. C., 573.\nIn this last case it is expressly held \u201cThat a county cannot be sued for trespass upon land or for any other tort in the absence of statutory authority.\u201d How far the individual inembers of the board of commissioners or others who may have committed the trespass, or directed or authorized it, may be liable, is a question not before us.\nWe are, therefore, of opinion that his Honor erred in rendering judgment against the board of commissioners in their corporate capacity. The defendant Rhodes is joined as a codefendant with the commissioners, and is sought to be held liable upon the theory that he authorized the trespass and entry upon the plaintiff\u2019s lands and received the proceeds of the rock quarry thereon. The evidence tends to prove that the plaintiff and Rhodes owned adjoining lands; Rhodes owning a tract of upland and the plaintiff owning a tract of lowland adjoining it.\nIt appears in the record that Rhodes leased, on 12 June, 1907, in consideration of certain rents specified in the written lease, to the board of commissioners a certain tract of land just beyond and east of the city of Wilmington, adjoining Mill Creek and Green\u2019s mill pond on the east, situate in the township of Harnett, county of New Hanover, as far east-wardly to a point 100 feet west of where the slaughter-house belonging to the party of the first part is now situate, and southward of said Mill Creek and Green\u2019s mill pond, \u2022 for the purpose of searching for rock, stone, marl, lime, etc., and conducting mining and quarrying operations thereon.\nIt is claimed by the plaintiff that the defendant Rhodes leased to the board of commissioners his land, or a part thereof, and authorized and directed the said quarrying operations and other trespasses thereon. The defendant Rhodes claims that he leased to the defendant board his own land, and that if they quarried on the plaintiff\u2019s land and beyond the dividing line, it was done without his authority. It thus became important to locate the plaintiff\u2019s land as well as that of the defendant Ehodes.\nOn the trial the court permitted the introduction of a judgment roll in the case of Thomas J. Keenan against the city of \"Wilmington and Louisa Gr. Wright, for the purpose of locating the boundaries between Thomas J. Keenan and the defendant Ehodes. It appears that Ehodes was not a party to said 'suit, and is, therefore, not bound by any judgment or decree' entered therein. Such judgment would not be competent to locate division line between plaintiff and Ehodes. We think his Honor erred in admitting it as evidence against Ehodes. \u2022\nThe second assignment of error is as follows:\n\u201c2. That the court erred in allowing the following question and answer: \u2018Q. Suppose the jury should find from the evidence we hereafter expect to offer that the line of Everett ran from the corner up there at the chinquapin, at the end of the 14 poles, directly across at the Market Street road at the corner of the Catholic Cemetery, ruled on the map. If you begin at that point at the Catholic Cemetery lot, at the northeast corner, would such a situation cover the land claimed by Keenan? A. A straight line across there would take in more land than Keenan claims.\u2019 \u201d\nThe exception is well taken. A hypothetical question should never be permitted upon evidence which up to that time had not been introduced. A promise to introduce it does not warrant a hypothetical question based thereon.\nWe do not find in the record that the promise was made good, and the evidence introduced. In Dameron v. Lumber Co., 161 N. C., 496, it is held that a hypothetical question, which presupposes the existence of facts of which there is no evidence introduced, is incompetent.\nThe only theory upon which the plaintiff can recover damages of the defendant Ehodes in this action is that his lease to the defendant board covers some part of the plaintiff\u2019s land or that he authorized or ratified the trespasses made upon his land and received the proceeds thereof. In which case Eho'des would be liable to the plaintiff only for such actual damage as was done to the plaintiff\u2019s land by Ehodes\u2019 authority.\nThe motion to nonsuit as to the defendant board should have been allowed; as to the defendant Ehodes, there must be a new trial of the entire case.\nNew trial.", "type": "majority", "author": "BbowN, J.," } ], "attorneys": [ "Bicaud & J ones, E. K. Bryan for plaintiff.", "J. O. Carr, Kenan & Stacy, and J. D. Bellamy for defendants." ], "corrections": "", "head_matter": "THOMAS J. KEENAN v. COMMISSIONERS OF NEW HANOVER COUNTY and I. B. RHODES.\n(Filed 25 November, 1914.)\n1. Counties \u2014 Torts of Officers \u2014 Trespass.\nCounties are instrumentalities of government given corporate powers for executing tbe purposes for wbicb tbey were created, and, in tbe absence of statutory provisions, are not liable in damages for tbe torts of tbeir officers. Hence, an action will not lie against a county for wrongful trespass and damages.\n2. Trespass \u2014 Authorized\u2014Adjoining Owners \u2014 Lessor and Lessee \u2014 Measure of Damages.\nWhere an action for wrongful trespass and damages for quarrying rock on tbe plaintiff\u2019s land is brought against tbe lessor of adjoining lands upon tbe theory tbat tbe defendant authorized tbe trespass and entry of his lessee and received the profits, which is denied, with further defense that if the lessee quarried beyond the line of the leased land upon the plaintiff\u2019s land, it was done without his authority, the only damages recoverable by the plaintiff are for the defendant\u2019s authorized act of his lessee in going beyond the line of the leased lands and committing the trespass and for which he received the proceeds.\n3. Trespass \u2014 Adjoining Lands \u2014 Dividing Line \u2014 Judgment Rolls \u2014 Parties\u2014 Evidence.\nWhere in an action for wrongful trespass and damage to lands it becomes necessary to locate the true dividing line between the parties, a judgment roll in a former-action to which the defendant was not a party is incompetent as evidence against him of the location of the dividing line.\n4. Witnesses \u2014 Hypothetical Questions \u2014 Trials\u2014Evidence.\nA hypothetical question, asked an expert witness upon evidence that the party thereafter expected to introduce, is incompetent.\nAppeal by- defendants from Allen, J., at February Term, 1914, of New Hanover.\nCivil action, tried upon these issues:\n1. Is tbe plaintiff tbe owner in fee and entitled to tbe immediate possession of tbe lands and premises' described in tbe complaint ? Answer: \u201cYes.\u201d\n2. Did tbe defendants wrongfully trespass upon and injure tbe plaintiff\u2019s property, as alleged in tbe complaint? Answer: \u201cYes.\u201d\n3. Wbat damages, if any, is tbe plaintiff entitled to recover against tbe board of commissioners of New Hanover County? Answer: \u201c$1,400.\u201d\n4. Wbat damages, if any, is tbe plaintiff entitled to recover against tbe defendants in tbis action, other than tbe board of commissioners of New Hanover County? Answer: \u201c$1,400.\u201d\n5. Did tbe board of commissioners of New Hanover County enter upon and remove rock and other road-building material from tbe plaintiff\u2019s lands under, by virtue of, and in pursuance to a lease or contract from I. B. Ebodes? Answer: \u201cYes.\u201d\n6. Has tbe board of commissioners of New Hanover County paid tbe said I. B. Ebodes and bis personal representatives in full for all tbe rock and road-building material quarried from tbe plaintiff\u2019s land ? Answer: \u201cYes; up to 1 February, 1914.\u201d\n7. Is tbe plaintiff\u2019s cause of action barred by tbe statute of limitations ? Answer: \u201cNo.\u201d\n8. Wbat damages, if any, from pumping water across the plaintiff\u2019s land ? Answer: \u201c$100.\u201d\nFrom tbe judgment rendered, both defendants appealed.\nBicaud & J ones, E. K. Bryan for plaintiff.\nJ. O. Carr, Kenan & Stacy, and J. D. Bellamy for defendants." }, "file_name": "0356-01", "first_page_order": 410, "last_page_order": 413 }