Shaw v. . Burfoot

53 N.C. 344

• Court: Supreme Court of North Carolina
• Decided: June 5, 1861
• Status: Published

Opinion

Manly, J.

The allegations of the petition are not such as to warrant proceedings in the names of the petitioners jointly. To make a petition by two or more separate proprietors of land, proper, in a case of the kind before us, it ought to be alleged that a common ditch (the one which they seek) would drain the land of all, and that in that way all have a joint interest in the object of their suit. No such allegation is made, nor is that state of facts inferable, at all, from the contents of the petition.

There are other substantial defects in the frame-work of the petition, which are objected to in the answer, and which the draftsman will at once perceive by comparing the petition with the method of proceedure pointed out in the Code.

The judgment of the Superior Court, appointing commissioners was erroneous, and should be reversed, and the defendant’s motion to dismiss sustained.

Per Curiam.

Judgment reversed and petition dismissed.