#### FRED L. SALE and JACK WESTALL, Trustees of the J. M. WESTALL TRUST, and MYRTLE SALE, MINNIE W. BOEHM, MARY WESTALL, JACK WESTALL and ANNIE WESTALL, Cestuis Que Trustent, Petitioners, v. STATE HIGHWAY & PUBLIC WORKS COMMISSION, Respondent.

(Filed 25 November, 1953.)

1. Eminent Domain § 22—

Where the State Highway and Public Works Commission purchases a right of way under authority of G.S. 136-19 it acquires the same rights as though it had acquired the land by condemnation.

2. Eminent Domain *§21%:*Highways § 8c—

While neither the State nor its agencies can take private property for public use without just compensation, the State Highway and Public Works Commission cannot be sued in contract, and the sole remedy by the owner of lands to recover compensation for its taking by the Commission is by a proceeding in accordance with statute. G.S. 136-19, G.S. 40-12 *et seq.*

3. Same — Where petition seeks compensation for the taking of land and evidence supports recovery for failure to pay compensation as stipulated in right of way agreement, nonsuit for variance should be allowed.

The owners of land filed a petition in the usual form pursuant to G.S. 136-19 and G.S. 40-12 *et seq.*to recover compensation for land taken for a right of way without reference to any option or right of way agreement. Petitioners introduced in evidence an option and right of way agreement requiring respondent, as a part of the consideration for the taking of the land, to remove certain buildings and reconstruct them, in as good condition as they were before moving, on other lands of petitioners, and to replace certain paving and fencing. Petitioners also introduced evidence that the buildings were destroyed by fire during the process of removal, and that the paving and fencing had not been replaced as stipulated. *600*Held:*Nonsuit should have been entered for material variance between allegation and proof.

4. Pleadings § 24—

A party must succeed, if at all, on the ease as set up in his complaint, and the proof must correspond to the allegations.

5. Trial § 23f—

Where there is a material variance between the allegation and proof, nonsuit should be allowed.

6. Appeal and Error § 5—

Where the disposition of respondent’s appeal renders academic the questions presented on petitioners’ appeal, petitioners’ appeal will be dismissed.

Appeal by petitioners and respondent from *Phillips, J.,*at February “A” Civil Term 1953 of BuNCOMbe.

Tbis is a special proceeding instituted by petitioners by virtue of Gr.S. 136-19 and G.S. 40-12 *ei seq.*before tbe Clerk of tbe Superior Court of Buncombe County to recover compensation for tbe alleged taking of an easement of right of way over property of tbe petitioners for tbe construction of a bridge over tbe French Broad River for tbe relocation of U. S. Highways Nos. 19 and 23 in tbe City of Asheville.

Fred L. Sale and Jack Westall are trustees of tbe J. M. Westall Trust, and Myrtle Sale, Minnie W. Boehm, Mary Westall, Jack Westall and Annie Westall are *cestuis que trustent,*and they are tbe petitioners herein. Tbe petitioners own a tract of land situate on West Haywood Street and Riverside Drive in Asheville.

On 19 May 1948 Jack Westall and Fred L. Sale, trustees of tbe J. M. Westall Trust, executed and delivered an option to tbe respondent. These are its material parts. In consideration of tbe sum of one dollar paid to tbe J. M. Westall Trust by tbe respondent, tbe Westall Trust granted to tbe respondent an option for 180 days to purchase a right of way for highway purposes over, upon and across its lands situate in tbe City of Asheville' — said right of way being 75 feet in width, and described with particularity. Tbis option also includes tbe purchase price of a small garage building. Other buildings on tbe right of way were to be removed therefrom, and reconstructed on property belonging to tbe trust, under tbe general contract and at tbe expense of tbe respondent. That tbe Westall Trust will execute, and deliver to tbe respondent at its request on or before 19 November 1948 a good and sufficient deed or agreement for tbe right of way across its lands, provided tbe respondent pay to it tbe sum of $3,622.50, and remove, and reconstruct said buildings. It is further agreed that tbe consideration to be paid shall be paid, and received in full payment of tbe purchase price of tbe right of way, and in full compensation for all damages, if any, resulting from tbe granting of *601tbis right of way and the construction of streets, roads and sidewalks upon the right- of way.

In July 1948 the respondent exercised this option, and the Westall Trust by Fred L. Sale, Trustee, executed and delivered to the respondent in accordance with the terms of the option a right of way agreement. This agreement was not signed by Jack Westall, Trustee, and is not dated. This agreement released the respondent from all claims for damages by reason of said right of way, and of the past and future use thereof by the respondent, its successors and assigns for all purposes for which the respondent is authorized by law to subject the right of way. This agreement provided that the small garage purchased by the respondent is to be demolished, and removed from the right of way by the respondent, and that the respondent is to remove at its expense one two-story frame warehouse and such portion of lumber shed as is within the right of way limits of the project from the right of way, and pay to the trust $3,622.50, which amount shall be in full settlement for the right of way, the small garage, and any and all damages to the property due to construction of this project. The buildings on the right of way to- be removed, and reconstructed as set forth in the option. It was further provided there are no conditions to this agreement not expressed herein. Then follows general covenants of warranty of title.

The petitioners introduced in evidence the option and right of way agreement.

The petitioners introduced in evidence the General Contract referred to in the option and right of way agreement. All of the General Contract is not in the record. The parts of it material for the purposes of this appeal are summarized below. General buildings or structures shall be prepared for, removed, and placed in their new locations, as shown on the plans, or as designated by the engineer, and left plumb and level, and in as good condition in all respects as they were before moving. New concrete driveways, or concrete driveways constructed to replace existing concrete drives, shall be Class “B” concrete, and shall be of the same thickness as existing driveways, or as specified in the plans. Payment will not be made for this work until an owner’s release is secured from the property owner, certifying that the work has been performed to the owner’s satisfaction, and that the respondent and the contractor are released from all responsibility in connection with this work. In extreme cases, when in the opinion of the right of way engineer, this requirement is being abused by the property owner, the requirement of the above release may be waived.

A release in accord with the terms of the option and the right of way agreement was also executed by Fred L. Sale, Trustee, and delivered to the respondent. It was not introduced in evidence.

*602About tbe time tbe right of way agreement and release were executed, and delivered to tbe respondent, tbe respondent tendered to tbe trustees of tbe J. M. Westall Estate its properly issued cheque in tbe amount of $3,622.50. Tbe trustees of tbe trust refused to accept it in July 1948 and also upon two later occasions.

Tbe wort of constructing tbe bridge over tbe French Broad River was done by tbe Bowers Construction Co. The work was begun about 31 May 1948, and was completed 20 October 1950.

Tbe petitioners, over tbe objection of tbe respondent, introduced in evidence a copy of a contract between tbe Bowers Construction Co., and G. E. Crouch, a subcontractor, who was to remove tbe buildings referred to in tbe option and right of way agreement at tbe price of $11,500.00.

In tbe process of moving tbe ridge of tbe roof of tbe two-story warehouse was broken in, though it was in continuous use for tbe storage of material by J. M. Westall & Co., and tbe Rock Wool Insulating Co. as renters. During tbe process of removal and reconstruction of tbe buildings on tbe right of way by Crouch, subcontractor, and before tbe work was complete, they were destroyed by fire of unknown origin on 13 September 1948. Other adjacent structures were also burned.

Tbe trustees of tbe trust refused to accept tbe cheque of $3,622.50 from tbe respondent because tbe work of removing and reconstructing tbe buildings, as provided for in tbe option and right of way agreement, has not been completed, and bad not been at tbe time of tbe fire. They refused to sign an owner’s release, as provided for in tbe General Contract, because tbe work of removal and reconstruction of tbe said buildings has not been performed to their satisfaction.

Tbe petitioners offered evidence that J. M. Westall & Co., dealers in lumber and building material, has brought an action against Bowers Construction Co. for damages for tbe destruction of personal property in tbe warehouse being removed from the right of way allegedly caused by tbe negligence of tbe construction company, which action has not been tried.

Tbe petitioners also offered evidence that debris was left on tbe property which it would cost $200.00 to remove, and that a highway engineer said be thought be could get through $100.00 to build a driveway to tbe removed warehouse.

Tbe petitioners offered evidence as to tbe reasonable market value of tbe property used by tbe respondent as a right of way and as to tbe value of tbe property burned.

Tbe petitioners contend that tbe respondent has not carried out all tbe provisions of tbe right of way agreement and General Contract, therein referred to, in that tbe buildings to be removed and reconstructed on property belonging to tbe trust, bad not been placed in their new location *603plumb and level and in as good condition in all respects as they were before moving; that tbeir destruction resulted from tbe taking; that paving had not been replaced; that the fence on the property had not been replaced; and that they and it have been unable to agree as to the value of the property taken by the respondent and the damage to that not taken. Therefore, they instituted this proceeding.

The petitioners admitted that the right of way agreement carried out the provisions contained in the option.

The petitioners do not contend that the option and right of way agreement are invalid, neither do they contend that the respondent has taken land beyond the limits of the option and right of way agreement.

The petition makes no reference to the option, right of way agreement, and the General Contract. It is drawn in the usual form when the respondent has taken over property for a public use without instituting condemnation proceedings.

In the Superior Court two issues were submitted to the jury. The jury awarded substantial damages, but found that no benefits, general or special, had accrued to petitioners.

Judgment was signed in accordance with the verdict, and both petitioners and respondent appeal assigning errors.

*R. Broohes Peters, General Counsel State Highway •& Public Worlcs Commission, Gudger, Elmore & Martin, Associate Counsel, for respondent appellant.*

*Uzzell & DuMont for petitioner appellants.*

The RespoNdeNt’s Appeal.

Paekee, J.

At the close of the petitioners’ evidence — the respondent offered none — the respondent demurred to the jurisdiction of the court. The demurrer was denied. This is respondent’s exception No. 90, and forms the basis of its assignment of error No. 29. The respondent then moved for judgment of nonsuit. This motion was denied, and is respondent’s exception No. 92, forming its assignment of error No. 31.

The respondent had authority by virtue of G.S. 136-19 to acquire the right of way by purchase, as it did.

The purchase of this right of way vested in the respondent the same rights as though it had acquired the land by condemnation. Lewis Eminent Domain (3rd Ed.), Sec. 474 (293); *St. Louis & B. Ry. Co. v. Van Hoorebeke,*191 Ill. 633, 61 N.E. 326; *St. Louis, etc. R. R. v. Hurst,*14 Ill. App. 419; *Roushlange v. Chicago & A. Ry. Co.,*115 Ind. 106, 17 N.E. 198; *Hileman v. Chicago Gt. W. Ry. Co.,*113 Ia. 591, 85 N.W. 800; *De Vore v. State Highway Com.,*143 Kan. 470, 54 P. 2d 971.

*604In Nicbols on Eminent Domain (3rd Ed.) (1950) Vol. 3 pp. 150-151 it is said: “One wbo agrees to give bis land for a public work does not necessarily thereby release bis claim for damages to bis remaining land by tbe construction of tbe work, altbougb it is usually beld tbat, in tbe absence of any special circumstances or conditions indicating a contrary intent, a conveyance of land for a specified public use constitutes a release of all damages to wbicb tbe owner of tbe property would be entitled if it was taken by eminent domain for tbe same purpose. One wbo bas released bis claim for damages arising from tbe taking is not thereby barred from an action for damages arising from the negligent manner in wbicb tbe work is done.” Citing cases from Georgia, Illinois, Iowa, Kentucky, Louisiana, Minnesota, Nebraska, New York, Pennsylvania, South Carolina, Texas, Vermont, West Virginia for tbe first sentence quoted, and cases from Oregon and Pennsylvania for tbe second sentence quoted.

In 29 C.J.S. Eminent Domain, Sec. 206 it is said: “Where a landowner bas granted a right of way over bis land, be must look to bis contract for compensation, as it cannot be awarded to him in condemnation proceedings, provided tbe contract is valid, and all its conditions have been complied with by tbe grantee . . —citing in support of tbe text De *Vore v. State Highway Commission, supra; State v. Lindley,*Civ. Appeals of Texas, 133 S.W. 2d 802; *Thomas E. Jeremy Estate v. Salt Lake City,*87 Utah 370, 49 P. 2d 405; *Person v. Miller Levee Dist. No. 2,*202 Ark. 876, 154 S.W. 2d 15; *Shortle v. Terre Haute & I. R. Co.,*131 Ind. 338, 30 N.E. 1084; *Heimburg v. Manhattan Ry. Co.,*162 N.Y. 352, 56 N.E. 899. Tbe eases cited support tbe text. To tbe same effect *Stoops v. Kittanning Tel. Co.,*242 Pa. 556, 89 A. 686.

In Lewis Eminent Domain (3rd Ed.) Sec. 474 (293) it is said: “Tbe conveyance of land for a public purpose will ordinarily vest in tbe grantee tbe same rights as though tbe land bad been acquired by condemnation. Tbe conveyance will be beld to be a release of all damages wbicb would be presumed to be included in *the*award of damages if tbe property bad been condemned. The grantor therefore cannot recover for any damages to tbe remainder of bis land wbicb result from a proper construction, use and operation of works upon the property conveyed. Damages which result from improper construction ... or negligence of any kind, may, of course, be recovered.”

Nicbols, *ibid.,*p. 148 says tbat where private property is taken by proceedings in exercise of tbe power of eminent domain, tbe right of tbe owner to receive compensation is ordinarily satisfied by payment. However, there are several circumstances under wbicb tbe owner’s right may be extinguished or barred without payment, for instance, (1) by release or agreement to claim no damages; (2) by waiver or estoppel; (3) by statute of limitations; or (4) by laches. On p. 149 tbe text states: “It *605frequently happens that tbe owners of land through which it is proposed to lay out a public improvement are anxious to have the plan carried out, and are willing to donate the necessary land on account of the benefit which the improvement will confer upon their other property. In such a case the most approved practice is for the owners to execute deeds of the land to the corporation about to construct the improvement, protecting themselves, if necessary, by conditions subsequent contained in the deeds, or by delivering the deeds in escrow, to be held until the improvement has been completed. Such deeds are unquestionably valid, and if the corporation subsequently, to cure any possible defects in its title, effects a taking of the same land by eminent domain, the grantors of the deeds are not entitled to additional compensation.”

In *Allen v. R. R.,*102 N.C. 381, 9 S.E. 4, the defendant proposing to construct a branch road from a point in the County of Wilson on its line to a point on the boundary line between the State and the State of South Carolina, with a view to this end procured from the plaintiff free and perpetual right of entry to the plaintiff’s land, an easement therein for the location of its contemplated railway, upon any part wherever the company may select its route. The deed conveyed the easement, with all the incidental rights and privileges necessary to its full enjoyment. The Court said: “The deed, if effectual, allowed the company to select its route, and would bar all claims for damages incidental to and necessarily incurred in exercising the conferred right.”

It has never been held in this jurisdiction that the State or its agencies can take private property for public use without just compensation. *Moore v. Clark,*235 N.C. 364, 70 S.E. 2d 182; *Lewis v. Highway Com.,*228 N.C. 618, 46 S.E. 2d 705. The Highway & Public Works Commission cannot be sued in contract. *Dalton v. Highway Com.,*223 N.C. 406, 27 S.E. 2d 1; nor in tort, *McKinney v. Highway Commission,*192 N.C. 670, 135 S.E. 772; *Pickett v. R. R.,*200 N.C. 750, 158 S.E. 398. A statutory method of procedure is provided for adjusting and litigating claims against the Highway & Public Works Commission, and the remedy set out in the statute is exclusive and may alone be pursued. *Latham v. Highway Com.,*191 N.C. 141, 131 S.E. 385; *Moore v. Clark, supra.*

The identical contracts offered in evidence in this case by the petitioners were before this Court in *Brown v. Construction Co.,*236 N.C. 462, 73 S.E. 2d 147. In that case Brown and wife trading as Eock Wool Insulating Company sought to recover damages for the loss by fire of goods stored in the warehouse referred to in this case. This Court held in referring to the contracts that “the matter of the removal and reconstruction of the buildings is made a part of the consideration to be paid by the State Highway & Public Works Commission.”

*606Applying the facts to the law as above stated, we arrive at these conclusions. The petitioners introduced in evidence the option, the right of way agreement and the General Contract. The petitioners admitted that the right of way agreement carried out the provisions contained in the option. They do not contend, nor have they offered any evidence, that the contracts are invalid; neither do they contend, nor have they offered evidence, that the respondent has taken land beyond the limits of the option and right of way agreement. Under these facts the petitioners having granted a right of way over their land and having released the respondent from all claims by reason of said right of way for all purposes for which the respondent is authorized by law to subject the right of way, must look to their contract for compensation, as it cannot be awarded to them in condemnation proceedings, provided all the conditions of the contracts have been complied with by the respondent. The petitioners contend that the removal and reconstruction of the buildings, the replacing of paving and the replacing of a fence were part of the consideration to be paid them and that has not been done, and the fire was caused by negligence. The respondent contends that the replacing of the paving and the fence were not required by the contracts. If the petitioners can allege, and prove their contention that they have been damaged by the negligent manner in which the work was done, or that they have been damaged by the respondent’s failure without lawful excuse to perform any of the work it contracted to do they can recover such damages in a special proceeding under G.S. 136-19 and G.S. 40-12 *et seq.,*provided the petitioners and respondent are unable to agree as to the amount of such damages, if any.

If the petitioners are to succeed at all, they must do so on the case set up in their complaint. *Moore v. Clark, supra; Suggs v. Braxton,*227 N.C. 60, 40 S.E. 2d 470; *Simms v. Sampson,*221 N.C. 379, 20 S.E. 2d 554; *Whichard v. Lipe,*221 N.C. 53, 19 S.E. 2d 14, 139 A.L.R. 1147. Their petition makes no reference to the option, right of way agreement and the General Contract; it is drawn in the usual form when the respondent has taken over property for a public use without instituting condemnation proceedings, and the parties are unable to agree as to the price of property taken, and the case was tried on that theory though the petitioners introduced in evidence the option, right of way agreement and General Contract. The proof materially departs from the allegations. “It has so often been said as to have grown into an axiom that proof without allegation is as unavailing as allegation without proof. There must, under the old or new system of pleading, be *allegata*and *probata,*and the two must correspond with each other. When the proof materially departs from the allegation, there can be no recovery without an amendment.” *Talley v. Granite Quarries Co.,*174 N.C. 445, 93 S.E. 995; *Whichard v.**607*Lipe, supra: Aiken v. Sanderford,*236 N.C. 760, 73 S.E. 2d 911. Tbis variance between tbe allegations and proof requires a reversal on tbe ruling on tbe motion to nonsuit.

Tbe case also seems to bave been tried on a misapplication of tbe pertinent principles of law.

Tbe respondent’s assignment of error No. 29 tbat tbe court bad no jurisdiction is without merit.

¥e refrain from discussing tbe case further, for if tbe petitioners pursue their case further, then upon a retrial tbe *allegata*and *probata*may present new and various phases of law and fact.

Tbe judgment is ordered

Eeversed.

PetitioNees’ Appeal.

By reason of tbe reversal of tbe judgment entered in tbe court below in tbis proceeding on tbe respondent’s appeal, the questions presented for our decision on tbe petitioners’ appeal bave become academic. It is ordered as to petitioners’ appeal

Appeal dismissed.