#### A. J. McKINNEY v. NORTH CAROLINA STATE HIGHWAY COMMISSION.

(Filed 8 December, 1926.)

Government — State Highway Commission — Roads and Highways — Condemnation — Damages—Rights and Remedies — Statutes.

The owner of land cannot maintain an action in tort against the State Highway Commission, an unincorporated governmental agency, for damages caused to his land for its having been taken by the commission for highway purposes, and is confined for his remedy to the provisions of the special proceedings of 8 C. S., 3846(bb), 1716.

Appeal by defendant from StacJc and Finley, JJ., at July Term, 1925, and April Term, 1926, of Mitchell.

Civil action instituted in the Superior Court of Mitchell County to recover of the defendant damages for causes alleged in the complaint as follows:

1. For that the defendant has wrongfully entered upon plaintiff’s lands and appropriated a part thereof, reasonably worth $350.00, to its own use in the construction of a State highway from Spruce Pine to Baker sville.

2. For that the plaintiff’s remaining lands, on account of the wrongful manner in which the defendant has constructed its road, have been greatly damaged to the extent of $150.00, making a total claim of $500 for the land taken and damage to the remaining lands.

At the July Term, 1925, before his Honor, A. M. Stack, judge presiding, the defendant moved to dismiss the action for want of jurisdiction, as the only remedy afforded the plaintiff by the statute was a special proceeding in condemnation under chapter 33 of the Consolidated Statutes. Motion overruled; exception. His Honor then, over the protest of the defendant, ordered a reference in the case. The defendant again excepted.

*671At tbe bearing before tbe referees, tbe defendant appeared and renewed its motion to dismiss for want of jurisdiction and upon tbe further ground tbat tbe case was not a proper one for reference. ■ Overruled; exception.

Upon tbe coming in of tbe report of tbe referees, in wbicb tbe plaintiff was awarded damages in tbe sum of $300.00, tbe defendant again moved before bis Honor, T. B. Finley, judge presiding, to dismiss tbe action for want of jurisdiction. Motion overruled in accordance witb tbe previous ruling on tbe same motion; exception. Tbe defendant tben lodged a motion to strike out tbe report of tbe referees. Motion overruled; exception.

From tbe judgment affirming tbe report of tbe referees, tbe defendant excepted and appealed.

McBee & Berry, Chas. Hutchins, and Chas. H. Greene for plaintiff.

Attorney-General Brumipnitt and Assistant Attorney-General Ross for defendant.

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.