Ferrell v. North Carolina State Highway Commission

115 S.E.2d 34 (1960) 252 N.C. 830

George W. FERRELL and wife, Catherine H. Ferrell
v.
NORTH CAROLINA STATE HIGHWAY COMMISSION.

No. 670.

Supreme Court of North Carolina.

June 30, 1960.

Robert I. Lipton, F. Gordon Battle and Bryant, Lipton, Strayhorn & Bryant, Durham, for plaintiffs, appellants.

T. W. Bruton, Atty. Gen., Kenneth Wooten, Jr., Asst. Atty. Gen., Charles W. Barbee, Jr., Raleigh, and Reade, Fuller, Newsom & Graham, Durham, for defendant, appellee.

MOORE, Justice.

The demurrer challenges the jurisdiction of the Superior Court to adjudicate the matters alleged in the complaint.

The action sounds in contract. Plaintiffs seek specific performance of the alleged contract and to that end a mandatory injunction, or in the alternative damages for alleged breach of contract.

The State may not be sued unless by statute it has consented to be sued or has otherwise waived its immunity from suit. Article IV, section 9, Constitution of North Carolina; Smith v. Hefner, 235 N.C. 1, 6, 68 S.E.2d 783. The North Carolina State Highway Commission is an unincorporated governmental agency of the State and not subject to suit except in the manner expressly authorized by statute, and against it an action in contract will not lie. Dalton v. State Highway and Public Works Comm., 223 N.C. 406, 407, 27 S.E.2d 1. It may not be sued in tort. Schloss v. State Highway and Public Works Comm., 230 N.C. 489, 492, 53 S.E.2d 517. Where private property has been taken for highway purposes, the only remedy available to the owner is a special proceeding pursuant to G.S. § 136-19 and G.S. § 40-12 et seq. Moore v. Clark, 235 N.C. 364, 367, 70 S.E.2d 182.

Our Court recognizes an exception to the foregoing general rules. "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." Sale v. State Highway and Public Works Commission, 242 N.C. 612, 617, 89 S.E.2d 290, 295. "* * * (W)hen private property is taken under circumstances such that no procedure provided by statute affords an applicable or adequate remedy, the owner, in the exercise of his constitutional rights, may maintain an action to obtain just compensation therefor." Cannon v. City of Wilmington, 242 N.C. 711, 713, 89 S.E.2d 595, 596.

To maintain the present cause of action it is incumbent upon the plaintiffs to allege facts which tend to show, or from which may be inferred: (1) that defendant obligated and agreed to construct service roads on each side of the main paved lane of the project as a part of the consideration for the right of way; (2) that defendant has failed to perform the agreement; and (3) that there is no procedure by statute affording an applicable or adequate remedy.

The complaint utterly fails to allege such cause of action or any cause of action against defendant. The complaint fails to allege a contract on the part of defendant to construct service roads.

The instrument, alleged to be a contract, is the consent judgment in the condemnation proceedings by the Kings against defendant. It is made a part of the complaint by reference. It is true that a consent judgment is the contract of parties to litigation entered upon the records with the approval and sanction of a court of competent jurisdiction. Armstrong v. Aetna Insurance Co., 249 N.C. 352, 356, 106 S.E.2d 515. Plaintiffs claim benefits under the consent judgment as assignees of the Kings.

"Since the contract is made a part of the complaint, and is alleged as the sole basis of recovery, the Court will look to its particular provisions rather than the more broadly stated allegations in the complaint, or the conclusions of the pleader as to its character and meaning." Williamson v. Miller, 231 N.C. 722, 726, 58 S.E.2d 743, 746.

The following statement appears in the preamble to the consent judgment proper: "* * * the estate or interest acquired by the * * * Commission for the public use in said lands is an easement of right of way across the same, including the limitation of access to the main or paved lanes of said project as set out in the pleadings herein and more particularly hereinafter described * * *" It must be assumed that the pleadings referred to do not enlarge or supplement the terms of the consent judgment since the above quoted excerpt states that the limitation of access as set out in the pleadings is more particularly described in the consent judgment.

Plaintiffs rely upon the following provision of the consent judgment to show a contract: "* * * the right of access to the main paved lanes of the project will be limited to service roads constructed or to be constructed on each side of the main paved lanes with no right of access to the said main paved lanes except as provided by the respondent herein and with the right of selection to be solely in the discretion of the respondent." Plaintiffs' main emphasis is upon the phrase, "service roads constructed or to be constructed on each side of the main paved lanes." Plaintiffs contend that this constitutes a contract to construct service roads on each side of the main paved lanes immediately or within a reasonable time. We do not agree.

Of course the consent judgment as a whole is a contract. It is therefore necessary to construe this contract to ascertain whether or not the portion relied on by plaintiffs has the meaning and effect attributed to it by them. It is the purpose of the contract to convey to defendant herein the easement of right of way in, over through and across the land of the Kings "including the limitation of access." This is repeated over and over again in the consent judgment. Defendant is to pay the Kings $2,500 as "the full, fair and adequate value of" and "just compensation for the easement of right of way * * * including the limitation of access." This is likwise repeatedly stated.

So it is clear that it is not the purpose of the contract to provide and assure access. On the contrary, it is the purpose of the agreement to limit access. The instrument undertakes to define and describe that limitation. This description is the portion of the instrument upon which plaintiffs rely to make out their case. But it is a negative, not a positive, provision. It purports to take from and not to add to the rights of the Kings, grantors. "The right of access will be limited to service roads constructed and to be constructed." This means simply that the grantors shall have right of access only by service roads already constructed or such as may be constructed in the future. The definition or description of the "limitation of access" further provides that such service roads shall have access to the main paved lanes only at points selected and provided by the Commission in its discretion.

Certainly there is no clear, definite, specific and unqualified agreement to build service roads. But it will be observed that as to all other matters the contract is detailed, clear and specific. If there had been an intent on the part of the contracting parties to obligate the Commission to construct service roads, it is reasonable to assume that the contract would have definitely stated the specific location, materials, specifications and time for construction of such service roads. "The parties undertook to reduce their agreement to writing, and presumably inserted every provision regarded material, and it is a well-recognized principle that there can be no implied contract, where there is an express contract between the parties in reference to the same subjectmatter." Morganton Manufacturing & Trading Co. v. Andrews, 165 N.C. 285, 290, 81 S.E. 418, 420. The contract is not ambiguous. Plaintiffs, assignees, read into the contract provisions that are not there.

The consent judgment repeatedly states that the sum of $2,500 is the full, fair and adequate value of and just compensation for the right of way and also the limitation of access. It nowhere mentions or suggests that any other consideration is to be given. There is no contention that the $2,500 has not been paid as agreed.

The judgment below is

Affirmed.