Moore v. Clark
70 S.E.2d 182
N.C.
1952
Check Treatment
EevtN, J.

These propositions are well settled:

1. Tbe State Highway and Public Works Commission is a State agency or instrumentality, and as sucb exercises various governmental-functions, including that of supervising tbe construction and maintenance of state *367 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. Highway Commission, 230 N.C. 489, 53 S.E. 2d 517; Dalton v. Highway Com., 223 N.C. 406, 27 S.E. 2d 1. Hence, it cannot be sued for tort (Pickett v. R. R., 200 N.C. 750, 158 S.E. 398; Carpenter v. R. R., 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. Highway Commission, 192 N.C. 670, 135 S.E. 772; Davis v. Highway Commission, 191 N.C. 146, 131 S.E. 387; Latham v. 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. Highway Com., 183 N.C. 68, 110 S.E. 583), or to restrain the commission of an apprehended tort. Schloss v. Highway Commission, supra.

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; Highway Com. 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. Highway Com., 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. Highway Commission, 230 N.C. 687, 55 S.E. 2d 479; Lewis v. Highway & Public Works Com., 228 N.C. 618, 46 S.E. 2d 705; Yancey v. Highway Commission, 222 N.C. 106, 22 S.E. 2d 256; Reed v. Highway Com., 209 N.C. 648, 184 S.E. 513; Milling Co. v. 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. Highway Commission, supra; Schloss v. Highway Commission, supra; Dalton v. Highway Com., supra; McKinney v. Highway Commission, supra; Latham v. 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. Highway Commission, supra; McKinney v. 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 prop *368 erty 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; Burl v. Henderson, supra; Moraski v. T. A. Gillespie Co., supra. See, also, in this connection: 63 C.J.S., Municipal Corporations, section 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 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.S., 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 *369 Public Works Commission, for contribution or indemnity in case judgment is rendered against them for trespassing on tbe plaintiffs’ farm.

Tbe judgment sustaining tbe demurrer is

Affirmed.