#### W. L. COHOON v. STATE OF NORTH CAROLINA and STATE HIGHWAY COMMISSION.

(Filed 16 September, 1931.)

States E lb — Where complaint presents issue of fact and no important question of law Supreme Court will not exercise recommendatory jurisdiction.

The original recommendatory jurisdiction of the Supreme Court to hear claims against the State is confined to the powers given by Art. IY, sec. 9, of our Constitution, and is not enlarged by the rules of procedure prescribed by C. S., 1410, to include any claim which may be presented for consideration, and where the complaint presents only an issue of fact and raises no important question of law the proceeding will be dismissed.

*313This is a proceeding invoking tbe original jurisdiction of tbe Supreme Court to bear an alleged claim against tbe State.

On 30 May, 1931, tbe plaintiff filed witb tbe clerk of tbe Supreme Court a verified complaint, alleging tbat be is tbe owner of a tract of land in Pasquotank County known as Blackacre Farm; tbat tbe State Highway Commission is an agency of tbe State, exercising powers conferred by tbe General Assembly, including tbe power of constructing and maintaining public highways connecting county seats and principal towns; tbat in building Highway No. 34 through tbe plaintiff’s land tbe Highway Commission constructed a roadbed three or four feet above tbe mean level of tbe land and dug a canal parallel witb tbe road; tbat tbe road extends about four miles through Dismal Swamp, which is a water-shed draining to tbe south and southeast and forming tbe source of tbe Perquimans River on tbe south side of tbe road; tbat tbe Highway Commission negligently constructed tbe roadbed and provided no culverts or other means for tbe natural flow of tbe water, thereby concentrating great volumes of water and causing tbe overflow of tbe plaintiff’s property, in consequence of which bis crops have been destroyed and bis land has been damaged. Tbe plaintiff estimated bis loss at $8,500 and prays tbat a recommendatory decision be rendered and reported to tbe next session of tbe General Assembly for its action.

Tbe defendants filed an answer admitting all paragraphs of tbe complaint except tbe fifth, in which tbe alleged negligence of tbe defendants is set forth. They allege by way of defense that if tbe construction of tbe highway damaged tbe plaintiff’s land, this to tbe extent of tbe damage was a “taking” of tbe land, for which an adequate remedy is provided by law.

*W. W. Gohoon and M. B. Simpson for- plaintiff.*

*Charles Boss for defendants.*

Adams, J.

An objection tbat tbe court has no jurisdiction of tbe . subject-matter or tbat tbe complaint does not state a cause of action is not waived by tbe filing of an answer. O. S., 518; *Knowles v. R. R.,*102 N. C., 59. So, after answering, tbe defendants moved *in limine to*dismiss tbe proceeding on tbe ground tbat this Court has no original jurisdiction of tbe cause stated in tbe complaint. Tbe motion, we think, should be granted.

Tbe Supreme Court is given original jurisdiction to bear claims against tbe State, but its decisions are merely recommendatory; they must be reported to tbe next session of tbe General Assembly for its action; and no process in tbe nature of execution shall issue thereon. *314Constitution, Art. IY, sec. 9. The procedure thus authorized is prescribed by section 1410 of the Consolidated Statutes; but this procedure must not be construed as exceeding the power conferred upon the Supreme Court by the organic law.

The Constitution of 1868 precluded the trial of issues of fact before this Court (Art. IY, sec. 10); and by amendment in the Convention of 1875 it was provided that jurisdiction over “issues of fact” and “questions of fact” should be the same as was exercised by the Court before the adoption of the Constitution of 1868. Art. IY, sec. 8. Before 1868 when a cause was removed from a court of equity to the Supreme Court questions of fact were heard as well as questions of law; and on appeal from a final decree in a court of equity causes were heard in the same way. *Graham v. Skinner,*57 N. C., 94; *Long v. Holt,*68 N. C., 53. Under the present Constitution, in suits which are purely equitable, this Court cannot review the evidence or the findings of fact where issues of fact are tried, because such “issues” are determined by a jury as in cases at law; but it is otherwise as to questions of fact. *Coales v. Wilkes,*92 N. C., 377.

The constitutional provisions heretofore cited do not contemplate the trial in this Court of issues of fact, but only a decision of such questions of law, based upon “our impression of the facts generally,” as will make intelligible the decision of the law. *Bledsoe v. State,*64 N. C., 392. Upon this principle it has been held that the recommenda-tory or original jurisdiction of the Court is confined to claims in which it is supposed that an opinion on an important question of law would be of aid to the General Assembly in determining the merits of a claim against the State. *Reynolds v. State,*64 N. C., 460. This is true notwithstanding the broad provision of section 1410 that *any*person having *any*claim against the State may commence the proceeding by filing his complaint. *Horne v. State,*82 N. C., 382.

It is for these reasons that the Supreme Court, as a rule, will consider only such claims as present serious questions of law and will not take the burden of passing upon “any and all claims that a party may prefer,” especially those which involve mainly issues or questions of fact, although in proper cases the Court may order that issues of fact be tried in the Superior Court, as provided in section 1410. *Reeves v. State,*93 N. C., 257; *Miller v. State,*134 N. C., 270; *Dredging Co. v. State,*191 N. C., 243.

In *Bain v. State,*86 N. C., 49, *Justice Ruffin*stated in the following-words the ground upon which the original jurisdiction of the Court is exercised: “The original jurisdiction, the exercise of which the plaintiffs invoke, was conferred upon this Court for the benefit only of such *315plaintiffs, and to be used only in sucb cases, as could not otherwise obtain a footing in the courts, by reason of the State’s being the party against whom the claims were to be asserted. If, by the ordinary process of the law issuing from a Court of ordinarily competent jurisdiction, a plaintiff can constitute his case regularly in court, as against a defendant interested in the subject-matter of the action, and under a judgment against whom complete relief can be had, then the case falls neither within the spirit of the Constitution nor the mischief which it was intended to remedy.”

The pleadings in the case before us raise the single issue whether the defendants negligently damaged the plaintiff’s land; and the defendants say that, if they did, this was a taking of the land for a public purpose, the damage for which should be sought in another forum. *Dayton v. Asheville,*185 N. C., 12; *Sandlin v. Wilmington, ibid.,*257. We only advert to this position. In any view, the issue joined is one of fact, and in these circumstances the proceeding in this Court for the enforcement of the plaintiff’s claim cannot be maintained. It raises no serious or important question of law, the decision of which would aid the General Assembly upon the controversy which the plaintiff intended to present. *Lacy v. State,*195 N. C., 284; *Warren v. State,*199 N. C., 211.

Proceeding dismissed.