Opinion
(Filed 19 June, 1902.)
1. Counties — Municipal Corporations — Suability — County Commissioners.
A county can not be sued unless such authority is expressly given by statute, and such authority, if given, would extend only to actions ordinarily incidental to its operations.
2. Jurisdiction — Highways — Laws 1901, Ch. 581.
Under Laws 1899, ch. 581, providing for the assessment of damages for taking land for road purposes, a petition to the county commissioners is the proper procedure, and not an action in the Superior Court.
ACTION by J. F. Jones against the Board of Commissioners of Franklin County, heard by Justice, J., at January Term, 1902, of FRANKLIN. From a judgment for the defendants, the plaintiff appealed.
F. S. Spruill for plaintiff.
W. H. Yarborough, Jr., for defendants.
DOUGLAS and Cook, JJ., dissenting.
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 for the county, under the provisions of chapter 581, Laws 1899, against the (452) 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. 437; Manuel v. Commissioners, 98 N.C. 9; Pritchard v. Commissioners, 126 N.C. 908, 78 Am. St., 679; Moody v. State's Prison, 128 N.C. 12. 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 Pritchard v. Commissioners, supra, and in other cases also.
In Gibbons v. U.S., 75 U.S. 269, 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 on Agency, sec. 319, it is said: "The Government does not undertake to guarantee 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 this second cause of action, the plaintiff complains that the defendants, through the same agent, without the plaintiff's (453) 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, chapter 581, Laws 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 refusing 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 Courts 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. McIntyre v. R. R., 67 N.C. 278; Gilliam v. Canady, 33 N.C. 106; Gillett v. Jones, 18 N.C. 339; Dargan v. R. R., 131 N.C. 623. In McIntyre v. R. R., (454) 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: "But the decisions (Gillett v. Jones, 18 N.C. 339; Gilliam v. Canady, 33 N.C. 106) do not go so much on the words of the act as upon its evident policy. If the owner of land overflowed by a milldam could bring his action on the case for damages every day, no public mill could be established. In like manner, if the owner of land taken by a railroad for its track could bring his action for trespass every day, no railroad could be built. In such case, the law considers the property, though taken for an individual, or for a private corporation, for the public use. R. R. v. Davis, 19 N.C. 451. It is not forbidden by the Constitution if compensation be made, and compensation is provided for. The mode of obtaining it may not be so easy or satisfactory to the owner, but it is not illusory; a substantial and just compensation may be obtained. There can be no doubt but that the Legislature had the right to take away the common-law remedy; the only question possible is as to their intention."
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, Laws 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 (455) 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 thirty days intervening between the taking and the next regular meeting of the board. Darby v. Wilmington, 76 N.C. 133; Broadfoot v. Fayetteville, 128 N.C. 529. The language of the statute is as follows:
"If the owner of any land, or the agent or 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.