It is provided by The Code, § 2751, “that persons owning lands on any navigable sound, river, etc., for the purpose of erecting wharves on the side of the deep water thereof, next to their lands, may make entries of land covered by wa'er adjacent to their own, as far as the deep water of such sound, river, etc., and obtain title as in other cases, * * * and when any such entry shall be made in front of the lands in any incorporated town, the town corporation shall regulate the line on deep water to which entries may *35be made.” The performance of the duty thus imposed upon the town corporation may be compelled by the Courts (Wool v. Sanders, 108 N. C., 729), and it is for this purpose that the present action is brought. The complaint alleges that the defendant did “undertake to locate the said line of deep water in front of the property of the plaintiff, * * * but that in fact the line so located does not extend to the deep water of Edenton Bay, nor does it regulate the deep-water line as required by law.” It is further alleged that the plaintiff has demanded that the defendant “extend and regulate the said line to the deep water of the said bay,” and that the defendant has refused to take any further action. It is insisted upon demurrer, that it appears from .the complaint that the defendant has fully performed its duties in the premises, and that the action should be dismissed.
We cannot assent to such a conclusion, and are of the opinion that his Honor was correct in overruling the demurrer. The law requires that the town shall “regulate the line on deep water,” and it is explicitly alleged that this duty has not been performed, and that in fact the line does not extend to the deep water. We are aware of no principle which authorizes us to presume that the defendant has performed a plain statutory duty in the face of such admissions as are contained in these pleadings.
As to the joinder of unnecessary parties, it has frequently been decided that it is not a ground of demurrer. Burns v. Ashworth, 72 N. C., 496.
Affirmed.