Mattox v. State

205 S.E.2d 364 (1974)

21 N.C. App. 677

Azalea MATTOX and husband, Tom Mattox v. STATE of North Carolina and North Carolina Department of Transportation and Highway Safety.

No. 7426SC40.

Court of Appeals of North Carolina.

June 5, 1974.

*365 Atty. Gen. Robert Morgan by Asst. Atty. Gen. Roy A. Giles, Jr., Raleigh, for the State.

Robertson & Brumley by Richard H. Robertson and A. Neal Brumley, Charlotte, for plaintiffs.

CARSON, Judge.

It is well founded that a sovereign State may be sued by a private individual only when the State has given permission to do so. Ferrell v. Highway Commission, 252 N.C. 830, 115 S.E.2d 34 (1960); Smith v. Hefner, 235 N.C. 1, 68 S.E.2d 783 (1952); Shipyard, Inc. v. Highway Comm., 6 N.C. App. 649, 171 S.E.2d 222 (1969). The plaintiffs acquired the right to sue the State in their first action pursuant to G.S. § 41-10.1. They allege that this statute allows them to sue the State here for the fair rental value of the property. G.S. § 41-10.1 provides:

Trying title to land where State claims interest.Whenever the State of North Carolina or any agency or department thereof asserts a claim of title to land which has not been taken by condemnation and any individual, firm or corporation likewise asserts a claim of title to the said land, such individual, firm or corporation may bring an action in the superior court of the county in which the land lies against the State or such agency or department thereof for the purpose of determining such adverse claims. Provided, however, that this section shall not apply to lands which have been condemned or taken for use as roads or for public buildings.

It is clear in the instant situation that the title has already been held to be properly vested in the plaintiffs, and the plaintiffs now have possession of the property. Mattox v. State, 280 N.C. 471, 186 S.E.2d 378 (1972). The title not being in issue, the question before us is whether the plaintiffs may bring an action for damages under the statutory provisions of 41-10.1. The right to sue the State is a conditional right, and the statutory provisions must be strictly followed. Floyd v. Highway Commission, 241 N.C. 461, 85 S.E.2d 703 (1955); Construction Co. v. Dept. of Administration, 3 N.C.App. 551, 165 S.E.2d 338 (1969). With the title to the property no longer in question, we hold that plaintiffs may not sue the State for any further damages.

The motion of the defendants to dismiss the action should have been granted. This cause is remanded with direction to dismiss this action with prejudice.

BROCK, C. J., and MORRIS, J., concur.