Latham v. State Highway Commission

• Decision Date: 27 January 1926
• Docket Number: 11.
• Citation: 131 S.E. 385,191 N.C. 141
• Parties: LATHAM v. STATE HIGHWAY COMMISSION ET AL.
• Court: North Carolina Supreme Court

131 S.E. 385

191 N.C. 141

LATHAM v. STATE HIGHWAY COMMISSION ET AL.

No. 11.

Supreme Court of North Carolina

January 27, 1926

Appeal from Superior Court, Pasquotank County; Cranmer, Judge.

Action by J. W. Latham against the State Highway Commission and others. From a judgment as of nonsuit, plaintiff appeals. Affirmed.

State Highway Commission not liable for damages occasioned in building highways.

Judgment of nonsuit, in action against state highway commission, held properly allowed.

Civil action instituted in the superior court of Pasquotank county to recover of the defendants damages for causes alleged in the complaint as follows:

(1) For that the defendants have wrongfully, unlawfully, and willfully trespassed upon plaintiff's lands and "cut out a ditch through a part of the lands of the plaintiff said ditch so cut out by them being at the public road aforesaid and extending through a part of the lands of the plaintiff and coming to an abrupt stop about the center of plaintiff's farm," and wrongfully accumulated and ponded water thereon.

(2) Because defendants have wrongfully and unlawfully trespassed upon the lands of plaintiff and "taken from this plaintiff a strip along one side of his farm bordering on said public road, containing about one-quarter of an acre more or less, and have made said trip so taken a part of the public road."

At the close of plaintiff's evidence there was a judgment as of nonsuit entered on motion of the defendants, and from this ruling the plaintiff appealed.

Aydlett & Simpson and Geo. J. Spence, all of Elizabeth City, for appellant.

W. L Cohoon, W. L. Small, and Ehringhaus & Hall, all of Elizabeth City, for appellees.

STACY C.J.

This case was before us at a former term (185 N.C. 134, 116 S.E. 85), on plaintiff's appeal from a judgment sustaining a general demurrer interposed by the defendants and which was reversed because of the presence of the individual defendant and the broad allegations of the complaint. Hipp v. Farrell, 169 N.C. 551, 86 S.E. 570; Id., 173 N.C. 167, 91 S.E. 831. Doubtless the demurrer should have been sustained as to the other defendants, especially the state highway commission. Carpenter v. R. R., 184 N.C. 400, 114 S.E. 693. But however this may be, in view of the evidence offered on the hearing, we have experienced no difficulty in concluding that the present judgment of nonsuit should be sustained; not only as it relates to the state highway commission and its agent, the Pasquotank highway commission (Jenkins v. Griffith, 189 N.C. 633, 127 S.E. 625), but also as it concerns the individual defendant, T. L. Higgs (Hyder v. Anderson County, 190 N.C. 660, 130 S.E. 497; Noland Co. v. Trustees, 190 N.C. 250, 129 S.E. 577). There is no evidence on the instant record sufficient to render any of the defendants liable in damages to the plaintiff on either cause of action set out in the complaint. The state highway commission was the moving spirit in all that was done, and it is not liable to suit for trespass or tort such as the plaintiff has instituted here. Mabe v. Winston-Salem, 190 N.C. 486, 130 S.E. 169.

In Carpenter v. R. R., supra, it was held: (1) That the state highway commission is not an incorporated body with the right to sue and be sued generally, but that it is an agency of the state, charged with the duty of exercising certain administrative and governmental functions. C. S. Supp. 1924 §§ 3846(f)-3846(p). (2) That a state cannot be sued in its own courts or elsewhere unless it has expressly consented to such suit by legislative enactment or in cases authorized by the organic law. And (3) that, generally speaking, a state cannot be held liable for torts committed by its officers or agents in the discharge of their official duties unless it has voluntarily assumed such liability. And we may add that where a state agency, like the state highway commission, is created for certain designated purposes and a statutory method of procedure provided for adjusting or litigating claims against such agency, the remedy set out in the statute is exclusive and may alone be pursued. McIntire v. R. R., 67 N.C. 278; Parks v. Com'rs, ...