Dalton v. State Highway and Public Works Commission

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 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 the 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 the 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 the 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 the measure of recovery is limited to the difference between the fair market value of the land before and after the taking thereof, with due allowance for general and special benefits accruing from the 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.