McKinney v. North Carolina State Highway Commission

135 S.E. 772, 192 N.C. 670, 1926 N.C. LEXIS 379

• Court: Supreme Court of North Carolina
• Decided: December 8, 1926
• Status: Published

Opinion

Stagy, O. J\,

after stating tbe case: In Latham v. Highway Commission, 191 N. C., 141, tbe Court beld tbat as tbe State Highway Commission is an unincorporated agency of tbe State, charged witb tbe duty of exercising certain administrative and governmental functions, it is not liable to suit for trespass or tort, such as tbe plaintiff has instituted in tbe present action. Speaking to tbe question, it was said tbat “where a State agency, like tbe State Highway Commission, is created for certain designated purposes, and a statutory method of procedure provided for adjusting or litigating claims against such agency, tbe remedy set out in tbe statute is exclusive and may alone be pursued,” citing a number of authorities for tbe position. Tbe only remedy afforded tbe plaintiff, and others similarly situated, by express provisions of tbe statute (3 C. S., 3846 (bb) and C. S., 1716) is a special proceeding in condemnation under chapter 33 of tbe Consolidated Statutes. This remedy is equally available to tbe owner of tbe land and tbe State Highway Commission.

Nor is tbe position affected by tbe fact tbat tbe defendant has denied plaintiff’s title. This circumstance was considered and allowed significance in several actions against municipal or gwasi-municipal boards or corporations, but we have never extended it to tbe State Highway Commission.

Tbe plaintiff has misconceived bis remedy. Tbe motion to dismiss should have been allowed. Let tbe cause be remanded witb direction tbat tbe action be dismissed at tbe cost of tbe plaintiff.

Reversed.