Dalton v. State Highway & Public Works Commission

• Decision Date: 29 September 1943
• Docket Number: 165.
• Citation: Dalton v. State Highway & Public Works Commission, 27 S.E.2d 1, 223 N.C. 406 (N.C. 1943)
• Parties: DALTON v. STATE HIGHWAY & PUBLIC WORKS COMMISSION.
• Court: North Carolina Supreme Court

27 S.E.2d 1

223 N.C. 406

DALTON v. STATE HIGHWAY & PUBLIC WORKS COMMISSION.

No. 165.

Supreme Court of North Carolina

September 29, 1943

This is a special proceeding instituted under the provisions of C.S. § 3846(bb), as amended, and § 1716 et seq., wherein the petitioner, John A. Dalton, seeks to recover damages for the taking of his land by the respondent, the State Highway &amp Public Works Commission, for widening of a state highway U.S. No. 74, near the village of Chimney Rock, in Rutherford County, and included in the items of damage alleged in the petition, by amendment, is the failure of the respondent to comply with its agreement with the petitioner, made prior to the moving of petitioner's house, to replace such house upon a good foundation in as good a condition as it was in its original state.

The following issues were submitted to the jury, and answered thereby as shown, to wit:

"1. What sum, if any, is the petitioner entitled to recover of the respondent by reason of the widening of the highway at the place in question? Answer: $900.00.

"2. What benefits, general or special, if any, accrued to the petitioner by reason of the widening of said highway? Answer None.

"3. Did the respondent agree to remove petitioner's residence in as good condition as it was in its original state? Answer Yes.

"4. Did respondent commit a breach of said contract, as alleged in the petition? Answer: Yes.

"5. What damage, if any, is petitioner entitled to recover by reason of said breach? Answer: $1,100.00."

From judgment for $2,000 predicated on the verdict in favor of the petitioner the respondent appealed, assigning errors.

Charles Ross, of Raleigh, and Ernest A. Gardner, of Shelby, for appellant.

R.L. Whitmire, of Hendersonville, and J.S. Dockery, of Rutherfordton, for appellee.

SCHENCK Justice.

The respondent objected and reserved exception to the submission of issues 3, 4, and 5, which relate to the petitioner's allegation and contention that he is entitled to recover damages for breach of contract to place petitioner's house on a good foundation in as good condition as it was in its original state, in addition to damages for the taking of his land for the widening of the highway. We are constrained to hold that this exception is well taken. The State Highway and Public Works Commission is an unincorporated governmental agency of the State and not subject to suit except in the manner expressly authorized by statute. McKinney v Highway...