Jones v. Franklin County Com'rs
| Decision Date | 19 June 1902 |
| Parties | JONES v. FRANKLIN COUNTY COM'RS. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Franklin county; Justice, Judge.
Action by J. F. Jones against the commissioners of Franklin county. From a judgment in favor of defendants, plaintiff appeals. Affirmed.
A reasonable time within which to make application for compensation for the taking of property by eminent domain after the property is taken, would be allowed where it would be impossible for the claimant to make the application at a regular meeting of the county commissioners, within 30 days after the taking, as required by Acts 1899, c. 581.
F. S Spruill, for appellant.
W. H Yarborough, Jr., for appellees.
The plaintiff, for his first cause of action, complains that the defendants, the board of commissioners of Franklin county through the superintendent of public roads of the county, under the provisions of chapter 581 of the Acts of 1899, against the protest of the plaintiff, and without condemnation proceedings, negligently, wrongfully, and tortiously cut and blasted away a strip of his land 12 or 15 feet in width, by which the plaintiff's pathway around the end of his house was destroyed, to his great injury, and his warehouse endangered, and also that the defendants, through their agent, carried away and removed large quantities of the stone and granite thus blasted, to his further injury. That cause of action is clearly laid in tort, and his honor properly sustained the defendants' demurrer thereto.
This court has repeatedly held that counties are instrumentalities of government, and are given corporate powers to execute their purposes, and are not liable for damages in the absence of statutory provisions giving a right of action against them. White v. Commissioners, 90 N.C. 439, 47 Am. Rep. 534; Manuel v. Commissioners, 98 N.C. 9, 3 S.E. 829; Prichard v. Commissioners, 126 N.C. 908, 36 S.E. 353, 78 Am. St. Rep. 672; Moody v. State's Prison, 128 N.C. 12, 38 S.E. 131. In the last-mentioned case it was further decided that, even if such authority was given, it could cover only actions ordinarily incidental to its operations, and would not extend to causes of action in tort. The same doctrine had been announced in Prichard v. Commissioners, supra, and in other cases also. In Gibbons v. U. S., 75 U.S. 269, 19 L.Ed. 453, the court said: "No government has ever held itself liable to individuals for the misfeasance, laches, or unauthorized exercise of power by its officers or agents." And in Story, Ag. § 319, it is said: "The government does not undertake to guaranty to any person the fidelity of any of its officers or agents whom it employs, since that would involve it, in all its operations, in endless embarrassment and difficulties and losses, which would be subversive of the public interests."
For his second cause of action, the plaintiff complains that the defendants, through the same agent, without the plaintiff's consent, and without condemnation proceedings, took for the use of the county, and for the convenience of the traveling public, a strip of land 10 or 12 feet in width, off one end, of his land of great value, and, in addition, cut and blasted away and removed a large quantity of building granite off the property, of considerable value. The defendants demurred, also, to that cause of action; the first specification being that the court has no jurisdiction of the subject-matter of the action. As to that part of the plaintiff's demand for the value of the strip of land alleged to have been taken by the defendants for the public use, the defendants were compelled to order a jury to assess the value of the same, under section 12 of the act of 1899. Upon their declining to do this upon demand made upon them for that purpose an appeal lay to the superior court on the part of the plaintiff. In reference to the plaintiff's demand in his second cause of action for the value of the rock or granite blasted and carried away by the defendants, the defendants were not required to order a jury to assess the value. They could have made the assessment and allowance themselves. Upon their refusal to make any allowance for the value of the granite taken, an appeal lay from their ruling to the superior court; the appeal "to be governed by the law regulating appeals from the courts of justices of the peace." The county commissioners, by the act of 1899, were given original jurisdiction of the matter embraced in the plaintiff's complaint, and the superior court could exercise only appellate jurisdiction.
It has been often held by this court that in cases involving the right of eminent domain the common-law remedy is superseded by the statutory remedy, and that aggrieved parties must therefore seek redress under the statutory remedy. McIntire v. Railroad Co., 67 N.C. 278; Gilliam v. Canaday, 33 N.C. 106; Gillet v. Jones, 18 N.C. 339; Dargan v. Railroad Co., 41 S.E. 979. In McIntyre v. Railroad Co. the action was in trespass for the recovery of damages for an injury sustained by the building of defendant's railroad on plaintiff's land. The court affirmed the judgment below,--that the plaintiff could not bring the action as at common law, but should have proceeded under the provisions of the charter of the company, which contained a method and manner of the assessment of damages. The court said in part: We can see no difference between the points discussed and involved in those cases and the point involved in the present case, in so far as the remedy of the plaintiff is concerned. The county of Franklin appropriated for the public use the property of the plaintiff, under chapter 581 of the Acts of 1899, and the manner of compensation was fixed in precise terms by the act. The common-law remedy was superseded by that of the statute.
It appears in this case that the plaintiff made his demand for compensation before the proper tribunal, and, upon his application having been refused, he should have appealed under the provisions of the act. If it had been that the plaintiff had not, at the time prescribed in the act, presented his claim, because of the impossibility of his having received notice of the taking of the property before the time when demand had to be made under the statute, we would have no hesitancy, while upholding the main features of the statute, in deciding that a reasonable time within which to make the application for compensation, after the property was taken, should have been allowed. because. under the terms of the act, it is apparent that there might be a taking of property by the county authorities for public purposes under the act at a time which would not admit of an interval of 30 days intervening between the taking and the next regular meeting of the board. Darby v. City of Wilmington, 76 N.C. 133; Broadfoot v. City of Fayetteville, 128 N.C. 529, 39 S.E. 20. The language of the statute (section 11) is as follows: "If the owner of any land, or the agent or the agents of such owner having in charge land from which timber, stone, gravel, sand or clay was taken as aforesaid, shall present an account of the same, through the county road superintendent, at any regular meeting of the county commissioners, within thirty days after the taking and carrying away of such timber, stone," etc., "it shall be the duty of the said commissioners to pay for the same a fair price."
No error.
I think there was error in sustaining the demurrer as to the second cause of action. The sacred regard which the law has for the rights of private property is such that it will not permit it to be taken for public use without just compensation, and an adequate remedy for that purpose must be provided. The remedy provided in this act (chapter 581, Laws 1899) is to be found in sections 11 and 13: "If the owner of any land *** from which timber, stone, gravel, sand or clay were taken *** shall present an account of the same through the county road superintendent at any regular meeting of the county commissioners within thirty days after the taking and carrying away of such *** it shall be the duty of said commissioners to pay for the same a fair price; and before deciding upon this, they may cause to be appointed an impartial jury *** which jury shall report in writing to the board of commissioners their decision for revision or confirmation: provided said land owner *** shall have the right of appeal *** [section 13] to the superior court if the land owner shall be dissatisfied with the finding of the jury and decision of the county commissioners, which shall be governed by the law regulating appeals from the courts of justices of the peace, and the same shall be heard...
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