ELLER v. BOARD OF EDUCATION OF BUNCOMBE COUNTY

No. 90.

89 S.E.2d 144 (1955)

242 N.C. 584

H. S. ELLER and wife, Maude J. Eller v. The BOARD OF EDUCATION OF BUNCOMBE COUNTY.

Supreme Court of North Carolina.

September 21, 1955.


Attorney(s) appearing for the Case

Harry C. Martin, Asheville, for defendant, appellant.

E. L. Loftin, Asheville, for plaintiffs, appellees.


BOBBITT, Justice.

Plaintiffs' action is to recover compensation in the amount of $4,000 on account of the partial taking or appropriation of their property.

Defendant, under the provisions of G.S. § 115-45, amended by S.L.1955, ch. 1372, subch. II, Art. 5, sec. 10, is a body corporate. While it may sue and be sued in its corporate name, this fact, standing alone, is not determinative as to what actions may be maintained against it. See Kirby v. Stokes County Board of Education, 230 N.C. 619, 55 S.E.2d 322.

Our decisions are to the effect that a county board of education has immunity from liability for torts of its members or agents, Benton v. Board of Education, 201 N.C. 653, 161 S.E. 96; Hansley v. Tilton, 234 N.C. 3, 65 S.E.2d 300; Smith v. Hefner, 235 N.C. 1, 68 S.E.2d 783, except such liability as may be established under our Tort Claims Act. G.S. § 143-291, as amended by S.L.1955, chs. 400, 1102 and 1361. But our construction of the complaint, which is in accord with the statement of plaintiffs' counsel on oral argument, is that plaintiffs have neither alleged nor attempted to allege a cause of action in tort.

When private property is taken for public use, just compensation must be paid. This principle is deeply imbedded in our constitutional law. It was incorporated in the Bill of Rights of the Federal Constitution. U.S.Const. Amend. V. 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. McKinney v. City of High Point, 237 N.C. 66, 74 S.E.2d 440.

In Price v. Board of Road Trustees, 172 N.C. 84, 89 S.E. 1066, L.R.A.1917A, 992, the distinction is drawn between liability to individuals for injuries tortiously inflicted and liability for the payment of compensation when private property is appropriated under right of eminent domain. See also, Sandlin v. City of Wilmington, 185 N.C. 257, 116 S.E. 733.

"The creation and maintenance of a governmental project so as to constitute a nuisance substantially impairing the value of private property, is, in a constitutional sense, a taking within the principle of eminent domain." City of Raleigh v. Edwards, 235 N.C. 671, 71 S.E.2d 396, 399, and cases cited. There need not be a seizure, whereby the owner is dispossessed. It is a sufficient taking to require payment of compensation if the value is substantially impaired. In such case, the compensation to be paid is based on the impairment of value cause by the injury so inflicted. McKinney v. City of High Point, supra; Sandlin v. City of Wilmington, supra. This is in accord with the weight of authority elsewhere. 29 C.J.S., Eminent Domain, § 110.

If defendant impeded the natural flow of the spring branch and caused water and mud to accumulate and back up on plaintiffs' property, as alleged, whether this constituted a taking would seem to turn on whether the value of plaintiffs' property was effectually and appreciably impaired thereby. 18 Am.Jur., Eminent Domain, sec. 134. But apart from that, if the sewage disposal device was constructed and operated so as to cause sewage to flow or seep onto plaintiffs' land and, by reason of such continuous pollution and the noxious odors emanating continuously therefrom, plaintiffs' spring was rendered unfit for use and their dwelling was rendered unfit for habitation, as alleged, such would constitute a taking to the extent of the impairment in value of plaintiffs' land caused thereby. Sandlin v. City of Wilmington, supra; Clinard v. Town of Kernersville, 215 N.C. 745, 3 S.E.2d 267; Young v. City of Asheville, 241 N.C. 618, 86 S.E.2d 408; 29 C.J.S., Eminent Domain, § 118; 18 Am.Jur., Eminent Domain, sec. 135; Lewis, Eminent Domain, 3rd ed., sec. 236.

Defendant further contends that plaintiffs' sole remedy is by petition before the clerk under G.S. § 40-12. Defendant has not undertaken to condemn plaintiffs' property under G.S. § 115-85, under G.S. § 40-11 et seq., or otherwise; nor has it taken possession thereof for school purposes. It does not claim plaintiffs' land. Presumably, it had no intention to "take" or pay for plaintiffs' land or any rights therein. G.S. § 40-12 et seq., with provisions for commissioners, appraisal, viewing the premises, etc., are applicable only to instances where the condemnor acquires title and right to possession of specific land. They have no application here.

On demurrer, the facts alleged are deemed admitted. Hence, judgment overruling demurrer is affirmed.

Affirmed.

WINBORNE and HIGGINS, JJ., took no part in the consideration or decision of this case.


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