Moore v. ClarkAnnotate this Case
70 S.E.2d 182 (1952)
235 N.C. 364
MOORE et ux. v. CLARK et al.
Supreme Court of North Carolina.
April 9, 1952.
*184 Albion Dunn, Greenville, for original defendants, appellants.
R. Brookes Peters, General Counsel for State Highway & Public Works Commission, Raleigh.
These propositions are well settled:
1. The State Highway and Public Works Commission is a State agency or instrumentality, and as such exercises various governmental functions, including that of supervising the construction and maintenance of state and county public roads. G.S. §§ 136-1, 136-18, and 136-51. In consequence, it is not subject to suit except in the manner provided by statute. G.S. § 136-19; Schloss v. State Highway & Public Works Commission, 230 N.C. 489, 53 S.E.2d 517; Dalton v. State Highway and Public Works Comm., 223 N.C. 406, 27 S.E.2d 1. Hence, it cannot be sued for tort, Pickett v. Carolina & N. W. Ry., 200 N.C. 750, 158 S.E. 398; Carpenter v. Atlanta & C. A. L. R. Co., 184 N.C. 400, 114 S.E. 693, or trespass, even though the trespass allegedly occurs in the building of a public highway. McKinney v. North Carolina State Highway Commission, 192 N.C. 670, 135 S.E. 772; Davis v. State Highway Commission, 191 N.C. 146, 131 S.E. 387; Latham v. State Highway Commission, 191 N.C. 141, 131 S.E. 385. Moreover, an action does not lie against it to enjoin the exercise of its governmental powers, Jennings v. State Highway Comm., 183 N.C. 68, 110 S.E. 583, or to restrain the commission of an apprehended tort. Schloss v. State Highway & Public Works Commission, supra.
*185 2. The State Highway and Public Works Commission possesses the sovereign power of eminent domain, and by reason thereof can take private property for public use for highway purposes. G.S. § 136-19; State Highway and Public Works Comm. v. Basket, 212 N.C. 221, 193 S.E. 16. The Commission may do this either by bringing a special proceeding against the owner for the condemnation of the property under G.S. § 136-19, or by actually seizing the property and appropriating it to public use. Jennings v. State Highway Comm., supra. When the State Highway and Public Works Commission takes private property for public use for highway purposes, the owner is entitled to receive just compensation from it for the property taken. Proctor v. State Highway and Public Works Commission, 230 N.C. 687, 55 S.E.2d 479; Lewis v. North Carolina State Highway & Public Works Comm., 228 N.C. 618, 46 S.E.2d 705; Yancey v. North Carolina State Highway & Public Works Commission, 222 N.C. 106, 22 S.E.2d 256; Reed v. State Highway and Public Works Comm., 209 N.C. 648, 184 S.E. 513; Riverview Milling Co. v. State Highway Commission, 190 N.C. 692, 130 S.E. 724. If the State Highway and Public Works Commission and the owner are unable to agree upon the compensation justly accruing to the latter from the taking of his property by the former, the owner must seek such compensation in the only mode appointed by law for the purpose, i. e., by a special proceeding in condemnation under G.S. § 136-19. Proctor v. State Highway and Public Works Commission, supra; Schloss v. State Highway & Public Works Commission, supra; Dalton v. State and Public Works Highway Comm., supra; McKinney v. North Carolina State Highway Commission, supra; Latham v. State Highway Commission, supra. The owner is at liberty to bring such proceeding against the Commission in case the latter takes his property merely by seizing it and appropriating it to public use for highway purposes. Proctor v. State Highway and Public Works Commission, supra; McKinney v. North Carolina State Highway Commission, supra.
3. A contractor who is employed by the State Highway and Public Works Commission to do work incidental to the construction or maintenance of a public highway and who performs such work with proper care and skill cannot be held liable to an owner for damages resulting to property from the performance of the work. The injury to the property in such a case constitutes a taking of the property for public use for highway purposes, and the only remedy available to the owner is a special proceeding against the State Highway and Public Works Commission under G.S. § 136-19 to recover compensation for the property taken or damaged. Yearsley v. W. A. Ross Const. Co., 309 U.S. 18, 60 S. Ct. 413, 84 L. Ed. 554; Burt v. Henderson, 152 Ark. 547, 238 S.W. 626; Marin Municipal Water Dist. v. Peninsula Paving Co., 34 Cal. App. 2d 647, 94 P.2d 404; Maezes v. City of Chicago, 316 Ill.App. 464, 45 N.E.2d 521; Moraski v. T. A. Gillespie Co., 239 Mass. 44, 131 N.E. 441; Garrett v. Jones, 200 Okl. 696, 200 P.2d 402; Svrcek v. Hahn, Tex.Civ.App., 103 S.W.2d 840; Panhandle Const. Co. v. Shireman, Tex. Civ.App., 80 S.W.2d 461. But if the contractor employed by the State Highway and Public Works Commission performs his work in a negligent manner and thereby proximately injures the property of another, he is personally liable to the owner therefor. Broadhurst v. Blythe Brothers Co., 220 N.C. 464, 17 S.E.2d 646; Burt v. Henderson, supra; Moraski v. T. A. Gillespie Co., supra. See, also, in this connection: 63 C.J.S., Municipal Corporations, § 1259(d).
These things being true, the State Highway and Public Works Commission cannot be required to make recompense in any way in an ordinary civil action for an injury to property, no matter what the source of the injury may be. Consequently, the demurrer was properly sustained.
While the question is not presented by the appeal, we deem it advisable to observe, in closing, that the order making the State Highway and Public Works Commission a party defendant was inadvertently entered notwithstanding the broad *186 provisions of G.S. § 1-73 authorizing the court to bring in new parties when a complete determination of a pending action cannot be made without their presence.
If the plaintiffs are to succeed at all, they must do so on the case set up in their complaint. Suggs v. Braxton, 227 N.C. 50, 40 S.E.2d 470; Simms v. Sampson, 221 N.C. 379, 20 S.E.2d 554; Whichard v. Lipe, 221 N.C. 53, 19 S.E.2d 14, 139 A.L.R. 1147; Rose v. Patterson, 220 N.C. 60, 16 S.E.2d 458. That pleading states a cause of action against the original defendants for trespass. The answer pleads matters in justification, i. e., that the defendants acted in behalf of the State Highway and Public Works Commission, which was taking the plaintiffs' property for public use in the lawful exercise of its right of eminent domain. The answer undoubtedly sets forth a valid defense to the cause of action pleaded by the plaintiffs. 63 C.J., Trespass, section 166. But it does not disclose any basis for obtaining any affirmative relief against the State Highway and Public Works Commission. The original defendants will not have any right of action over against the State Highway and Public Works Commission for contribution or indemnity in case judgment is rendered against them for trespassing on the plaintiffs' farm.
The judgment sustaining the demurrer is