#### J. W. LATHAM v. STATE HIGHWAY COMMISSION, PASQUOTANK HIGHWAY COMMISSION et al.

(Filed 27 January, 1926.)

Government — State Highway Commission — Torts — Trespass — County Highway Commission.

The State Highway Commission is an unincorporated agency of the State to perform specific duties in relation to the highways of the State, and is not liable in damages for the torts of its subagencies, and an action may not be maintained against it or a county acting thereunder in trespassing upon the lands of a private owner, or for the faulty construction of its drains, or the taking of a part of the lands of such owner for the use of the highway, the remedy prescribed by the statute being exclusive.

Appeal by plaintiff from Granmer, J., at January Term, 1925, of PASQUOTANK.

Civil action instituted in tbe Superior Court of Pasquotank County to recover of tbe defendants damages for causes alleged in tbe complaint as follows:

1. For tbat tbe defendants have wrongfully, unlawfully and wilfully trespassed upon plaintiff’s lands and “cut out a ditch through a part of tbe lands of tbe plaintiff, said ditch so cut out by them being at tbe public road aforesaid, and extending through a part of tbe lands of tbe plaintiff and coming to an abrupt stop about tbe center of plaintiff’s farm,” and wrongfully accumulated and ponded water thereon.

2. ' Because defendants have wrongfully and unlawfully trespassed upon tbe lands of plaintiff and “taken from this plaintiff a strip along *142one side of bis farm bordering on said public road, containing about one quarter of an acre, more or less, and bave made said strip so taken a part of tbe public road.”

At tbe close of plaintiff’s evidence, there was a judgment as of nonsuit entered on motion of tbe defendants, and from tbis ruling tbe plaintiff appealed.

Aydlett & Simpson and Geo. J. Spence for plaintiff.

W. L. Gohoon, W. L. Small and Shringhaus & Sail for defendants.

Stacy, C. J.

Tbis case was before us at a former term (185 N. C., 134), on plaintiff’s appeal from a judgment sustaining a general demurrer interposed by tbe defendants and wbicb was reversed because of tbe presence of tbe individual defendant and tbe broad allegations of tbe complaint. Hipp v. Ferrell, 169 N. C., 551, S. c., 173 N. C., 167. Doubtless tbe demurrer should bave been sustained as to tbe other defendants, especially tbe State Highway Commission. Carpenter v. R. R., 184 N. C., 400. But however tbis may be, in view of tbe evidence offered on tbe bearing, we bave experienced no difficulty in concluding that tbe present judgment of nonsuit should be sustained; not only as it relates to tbe State Highway Commission and its agent, tbe Pasquotank Highway Commission (Jenkins v. Griffith, 189 N. C., 633), but also as it concerns tbe individual defendant, T. L. Higgs. Hyder v. Henderson County, 190 N. C., 663; Noland Co. v. Trustees, 190 N. C., 250. There is no evidence on tbe instant record sufficient to render any of tbe defendants liable in damages to tbe plaintiff on either cause of action set out in tbe complaint. Tbe State Highway Commission was tbe moving spirit in all that was done, and it is not liable to suit for trespass or tort such as tbe plaintiff has instituted here. Mabe v. Winston-Salem, 190 N. C., 486.

In Carpenter v. R. R., supra, it was held (1) that tbe State Highway Commission is not an incorporated body with tbe right to sue ánd be sued generally, but that it is an agency of tbe State, charged with tbe duty of exercising certain administrative and governmental functions (C. S., 3846) ; (2) that a state cannot be sued in its own courts or elsewhere unless it has expressly consented to such suit by legislative enactment or in cases authorized by tbe organic law; and (3) that, generally speaking, a state cannot be held liable for torts committed by its officers or agents in tbe discharge of their official duties unless it has voluntarily assumed such liability. And we may add that 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 *143in tbe statute is exclusive and may alone be pursued. McIntyre v. R. R., 67 N. C., 278; Parks v. Comrs., 186 N. C., 490; Jones v. Comrs., 130 N. C., 452; Dargan v. B. R., 131 N. C., 623; Durham v. Rigsbee, 141 N. C., 128; Luther v. Comrs., 164 N. C., 241; Pharr v. Comrs., 165 N. C., 523; Shute v. Monroe, 187 N. C., 683; Allen v. R. R., 102 N. C., 381.

Tbe line of cases, beginning witb Mason v. Durham, 175 N. C., 638, and including among others, Fleming v. Congleton, 177 N. C., 186, Keener v. Asheville, ibid., 1, Sawyer v. Drainage District, 179 N. C., 182, Rouse v. Kinston, 188 N. C., 1, strongly relied on by plaintiff, is not at variance witb our present position for tbe very good reason, inter alia, tbat in eacb case going to make up tbis line of decisions, tbe action was against a municipal or gwasvmunicipal board or corporation charged witb tbe exercise of ministerial, as well as governmental, functions, and not against an unincorporated agency of tbe State, as in tbe instant case. Moody v. State Prison, 128 N. C., 12; Jones v. Henderson, 147 N. C., p. 125. And, too, in tbe Mason case and others, there was a denial of title, making it necessary for plaintiff to resort to tbe Superior Court for a determination of tbe question of ownership and tbe right to claim damages.

On tbe record, tbe defendant’s motion for judgment as of nonsuit, made at tbe close of plaintiff’s evidence, was properly allowed.

Affirmed.