The opinion
The opinion of the court was delivered by
Beasley, Chief Justice.
This case stands before the court on a general demurrer to the several counts contained in the declaration.
The object of the defence in thus pleading was to raise the question whether the county was responsible for the building of a wall that stopped up a way that ivas appurtenant to certain property of the plaintiff. The theory of the defence was that the county, in building this obstruction, did so in the performance of a public duty, and therefore, upon general principles, was not liable for the damages resulting.
But this contention has no basis in this record, for it nowhere appears that the defendant in doing the acts set forth was, in any measure, in the performance of any public function. All that we know upon this subject is that the defendant obstructed the plaintiff’s passageway. Consequently the defendant is presented to the court, as it plainly appears, in the character of an ordinary trespasser. In the present aspect of the case it is impossible for the court to inject into it the circumstance that was assumed in the argument that these officers of the county were in this matter discharging a public obligation. If such a fact exist and if it be important to the issue, it must be brought before it by a plea.
Let the demurrer be overruled.