Dalton v. State Highway & Public Works Commission

Tbe respondent objected and reserved exception to tbe submission of issues 3, 4, and 5, wbicb relate to tbe petitioner’s allegation and contention that be is entitled to recover damages for breach of contract to place petitioner’s bouse on a good foundation in as good condition as it was in its original state, in addition to damages for tbe taking of bis land for tbe widening of tbe highway. We are constrained to bold that this exception is well taken. Tbe State Highway and Public Works Commission is an unincorporated governmental agency of tbe State and not subject to suit except in tbe manner expressly authorized by statute. McKinney v. Highway Com., 192 N. C., 670, 135 S. E., 772; Yancey v. Highway Com., 222 N. C., 106, 22 S. E. (2d), 256. The purpose of tbe special proceeding provided by C. S., 3846 (bb) and 1716, is to furnish a procedure to condemn land for a public purpose and to fix compensation for tbe taking thereof, and does not in any way authorize an action for breach of contract. A State cannot be sued in its own courts or elsewhere unless it has expressly consented to such suit, by statutes or in cases authorized by provisions in the organic law, instanced by Art. III, Const. U. S.; Art. IV, sec. 9, Const. of North Carolina; Carpenter v. R. R., 184 N. C., 400, 114 S. E., 693; and for tbe further reason, it would seem, that in a special proceeding for condemnation, being entirely statutory, a cause of action for breach of contract cannot be joined, and in such proceeding tbe measure of recovery is limited to tbe difference between the fair market value of tbe land before and after tbe taking thereof, with due allowance for general and special benefits accruing from tbe improvement of -the highway. Allen v. R. R., 102 N. C., 381, 9 S. E., 4; Abernathy v. R. R., 150 N. C., 97, 63 S. E., 180.

For tbe error in submitting the issues to which exception was reserved tbe respondent is entitled to a new trial and it is so ordered.

New trial.