Stribbling v. Lamm

80 S.E.2d 270 (1954)

239 N.C. 529

STRIBBLING et al. v. LAMM et al.

No. 742.

Supreme Court of North Carolina.

February 24, 1954.

*271 Allen & Allen, Young, Young & Gordon, Burlington, for plaintiffs appellees.

Cooper, Long, Latham & Cooper, Burlington, for defendants appellants.

WINBORNE, Justice.

The sole assignment of error presented on this appeal is directed to the ruling of the trial court in overruling the demurrer entered by defendants.

"The office of a demurrer is to test the sufficiency of a pleading, admitting, for the purpose, the truth of the allegations of fact contained therein, and ordinarily relevant inferences of fact, necessarily deducible therefrom, are also admitted, but the principle does not extend to the admissions *272 of conclusions or inferences of law", Stacy, C. J., in Ballinger v. Thomas, 195 N.C. 517, 142 S.E. 761, 763. See also McCampbell v. Valdese Bldg. & Loan Ass'n, 231 N.C. 647, 58 S.E.2d 617; also Clinard v. Lambeth, 234 N.C. 410, 67 S.E.2d 452.

Now in respect to the matters alleged in the complaint: In Fitch v. Selwyn Village, 234 N.C. 632, 68 S.E.2d 255, 257, in opinion by Denny, J., this Court said: "The overwhelming weight of authority in this country is to the effect that ponds, pools, lakes, streams, reservoirs, and other bodies of water, do not per se constitute attractive nuisances. 56 Am.Jur., Waters, section 436, page 850. `The attractive nuisance doctrine generally is not applicable to bodies of water, artificial as well as natural, in the absence of some unusual condition or artificial feature other than the mere water and its location.' 65 C.J.S., Negligence, § 29(12)j, p. 475. It is, therefore, not negligence per se to maintain an unenclosed pond, pool, lake, or reservoir on one's premises", citing Barlow v. Gurney, 224 N.C. 223, 29 S.E.2d 681, and Hedgepath v. City of Durham, 223 N.C. 822, 28 S.E.2d 503.

Testing the sufficiency of the allegation of fact by the rule stated above, in the light of the principles set forth in the Fitch case, this Court is of opinion that the demurrer is well taken, and should have been sustained. True there are allegations of conclusions of law, but these may not aid the pleader. Indeed, they are in conflict with the Fitch case.

For reasons stated the judgment overruling the demurrer is

Reversed.

BOBBITT, J., took no part in the consideration and decision of this case.