Sale v. State Highway and Public Works Commission

Decision Date28 September 1955
Docket NumberNo. 89,89
Citation242 N.C. 612,89 S.E.2d 290
PartiesFred L. SALE and Jack Westall, Trustees of the J.M. Westall Trust, and Myrtle Sale, Minnie W. Boehm, Mary Westall, Jack Westall and Annie Westall, cestui que trustent, Petitioners, v. STATE HIGHWAY and PUBLIC WORKS COMMISSION, Respondent.
CourtNorth Carolina Supreme Court

R. Brookes Peters, Gen. Counsel State Highway and Public Works Commission, Raleigh, and McLean, Gudger, Elmore & Martin, Asheville, for respondent, appellant.

Uzzell & Dumont, Asheville, for petitioners, appellees.

PARKER, Justice.

The State Highway & Public Works Commission was authorized by G.S. § 136-19 to acquire the easement of a right-of-way over petitioners' lands from them by purchase. The consideration for the right-of-way agreement was the payment of $3,622.50 and the removal at the Commission's expense of one two-story frame warehouse and such portion of a lumber shed as is in the right-of-way limits from the right-of-way, and the buildings on the right-of-way, other than the frame garage, to be reconstructed on property belonging to the trust, under the general contract and at the expense of the Commission. The general contract of the Commission with Bowers Construction Company provided how the buildings should be placed after the removal. In the opinion in Sale v. State Highway & Public Works Commission, 238 N.C. 599, 78 S.E.2d 724, 729, which involved the same parties and the same subject matter here, we said: "The identical contracts offered in evidence in this case by the petitioners were before this Court in Brown v. Bowers Construction Co., 236 N.C. 462, 73 S.E.2d 147, 151. In that case Brown and wife trading as Rock Wool Insulating Company sought to recover damages for the loss by fire of goods stored in the warehouse referred to in this case. This Court held in referring to the contracts that 'the matter of the removal and reconstruction of the buildings is made a part of the consideration to be paid by the State Highway & Public Works Commission.' "

We said in Sale v. State Highway & Public Works Commission, supra, that the Commission cannot be sued in contract, nor in tort. We also said in that case, "it has never been held in this jurisdiction that the State or its agencies can take private property for public use without just compensation. (Citing authorities.)"

This Court said in Eason v. Spence, 232 N.C. 579, 61 S.E.2d 717, 721: "Under Article 1, Section 17, of the State Constitution, no person can be deprived of his property except by his own consent or the law of the land. The law of the land and due process of law are interchangeable terms."

This Court said in Eller v. Board of Education, N.C., 89 S.E.2d 144, 146: "When private property is taken for public use, just compensation must be paid. * * * While the principle is not stated in express terms in the North Carolina Constitution, it is regarded as an integral part of the 'law of the land' within the meaning of Art. I, sec. 17."

This principle is so grounded in natural law and justice that it is part of the fundamental law of the State, Ivester v. City of Winston-Salem, 215 N.C. 1, 1 S.E.2d 88, and imposes upon a governmental agency taking or appropriating private property for public use a correlative duty to make just compensation to the owner of the property appropriated. Proctor v. State Highway Comm., 230 N.C. 687, 55 S.E.2d 479; Sanders v. Atlantic Coast Line R. Co., 216 N.C. 312, 4 S.E.2d 902.

While practically every state in the Union, North Carolina excepted, contains an express constitutional prohibition against the taking of private property for public use without the payment of just compensation, Jahr, Eminent Domain, Sec. 36, yet North Carolina recognizes this fundamental right to just compensation as founded on natural justice. City of Raleigh v. Hatcher, 220 N.C. 613, 18 S.E.2d 207; Shute v. City of Monroe, 187 N.C. 676, 683, 123 S.E. 71; Johnston v. Rankin, 70 N.C. 550.

The Fourteenth Amendment to the U.S. Constitution provides: "Nor shall any State deprive any person of life, liberty, or property, without due process of law." This amendment is a limitation on the powers of the State. Yarborough v. North Carolina Park Commission, 196 N.C. 284, 145 S.E. 563. It adds nothing to the rights of one citizen against another. It simply furnishes a guaranty against any encroachment by the State on the fundamental rights belonging to every citizen. United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588, 592.

A constitutional prohibition against taking or damaging private property for public use without just compensation is self-executing, and neither requires any law for its enforcement, nor is susceptible of impairment by legislation. People ex rel. Wanless v. City of Chicago, 378 Ill. 453, 38 N.E.2d 743, 138 A.L.R. 1298; People ex rel. Markgraff v. Rosenfield, 383 Ill. 468, 50 N.E.2d 479; State Highway Comm. v. Mason, 192 Miss. 576, 4 So. 345, 6 So.2d 468; Parker v. State Highway Comm., 173 Miss. 213, 162 So. 162; Virginia Hot Springs Co. v. Lowman, 126 Va. 424, 101 S.E. 326; Nelson County v Loving, 126 Va. 283, 101 S.E. 406; Angelle v. State, 212 La. 1069, 34 So.2d 321, 2 A.L.R.2d 666; Schmutte v. State, 147 Neb. 193, 22 N.W.2d 691; Rose v. State, 19 Cal.2d 713, 123 P.2d 505; Tomasek v. State, 196 Or. 120, 248 P.2d 703; Milhous v. State Highway Dept., 194 S.C. 33, 8 S.E.2d 852, 128 A.L.R. 1186; 16 C.J.S., Constitutional Law, § 49, p. 102.

"When the provision of a Constitution, as does ours, * * * forbids damage to private property, and points out no remedy, and no statute affords one, for the invasion of the right of property thus secured, the provision is self-executing, and the common law, which provides a remedy for every wrong, will furnish the appropriate action for the redress of such grievance." Swift & Co. v. City of Newport News, 105 Va. 108, 52 S.E. 821, 824, 3 L.R.A., N.S., 404.

In Angelle v. State, supra [212 La. 1069, 34 So.2d 323], the Court said: "Where private property has been appropriated by the State 'for public purposes' the right of the owner to recover adequate compensation will be entertained by the courts as an exception to the principle that the sovereign cannot be sued without its consent."

This Court said in Sandlin v. City of Wilmington, 185 N.C. 257, 116 S.E. 733, 735: "An action against a municipality for damages to property resulting from the performance of a governmental duty cannot be maintained on the theory of a trespass in the absence of statutory or legislative authority conferring such right of action, but this principle does not apply to an action brought to recover damages for property appropriated without due compensation."

When Article 1, Section 17, of the North Carolina Constitution provides that "no person ought to be * * * in any manner deprived of his life, liberty or property, but by the law of the land", and when the fundamental law of this State, based on natural justice and equity, prohibits the taking or acquisition of private property for public use without the payment of just compensation, or its equivalent, and the North Carolina Constitution points out no remedy, and if no statute affords an adequate remedy for the depriving an owner of private property for public use without just compensation, under a particular fact situation, the common law which provides a remedy for every wrong will furnish the appropriate action for the adequate redress of such grievance. Swift & Co. v. City of Newport News, supra; Roe v. Cook County, 358 Ill. 568, 193 N.E. 472; Parker v. State Highway Comm., supra; Tremayne v. City of St. Louis, 320 Mo. 120, 6 S.W.2d 935; Tomasek v. State, supra; Angelle v. State, supra; 16 C.J.S., Constitutional Law, § 49.

In this State when a person has been deprived of his private property for public use nothing short of actual payment, or its equivalent, constitutes just compensation. The entry of a judgment is not sufficient. Sanders v. Atlantic Coast Line Railroad Co., supra; Town of Mount Olive v. Cowan, 235 N.C. 259, 69 S.E.2d 525; People ex rel. Wanless v. City of Chicago, supra; 29 C.J.S., Eminent Domain, § 191, p. 1088.

The courts of the land to preserve the liberty and rights and property of the people, must adhere to the plain stipulations of the fundamental law, and it will be a tragic day in the history of our democratic constitutional form of government, if the courts should ignore the clear mandates of the organic law.

In the obligations assumed by a party to a contract is found his duty, and his failure to comply with the duty constitutes the breach. In Cape Fear & D.R. Navigation Co. v. Wilcox, 52 N.C. 481, Pearson, C.J., said for the Court: "One who prevents the performance of a contract, or makes it impossible by his own act, shall not take advantage of the nonperformance."

This Court said in Steamboat Co. v. Transportation Co., 166 N.C. 582, 82 S.E. 956: "Where parties contract with reference to specific property and the obligations assumed clearly contemplate its continued existence, if the property is accidentally lost or destroyed by fire or otherwise, rendering performance impossible, the parties are relieved from further obligations concerning it. * * * Before a party can avail himself of such a position, he is required to show that the property was destroyed, and without fault on his part. For this reason, and, further, because, by the terms of the present contract, the care and custody of the property was left with plaintiff, if it is established that plaintiff has failed to further perform the executory features of this agreement, the burden would be on plaintiff to show that the steamer was destroyed by fire, and that the plaintiff and its agents were in the exercise of proper care at the time." The quoted part of the opinion relates to a counterclaim set up by defendant against plaintiff by reason of failure to perform on its part.

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