
89 S.E.2d 290 (1955)
242 N.C. 612
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, cestui que trustent, Petitioners,
v.
STATE HIGHWAY AND PUBLIC WORKS COMMISSION, Respondent.
No. 89.
Supreme Court of North Carolina.
September 28, 1955.
*294 R. Brookes Peters, Gen. Counsel State Highway and Public Works Commission, Raleigh, and McLean, Gudger, Elmore & Martin, Asheville, for respondent, appellant.
Uzzell & Dumont, Asheville, for petitioners, appellees.
PARKER, Justice.
The State Highway & Public Works Commission was authorized by G.S. § 136-19 to acquire the easement of a right-of-way over petitioners' lands from them by purchase. The consideration for the right-of-way agreement was the payment of $3,622.50 and the removal at the Commission's expense of one two-story frame warehouse and such portion of a lumber shed as is in the right-of-way limits from the right-of-way, and the buildings on the right-of-way, other than the frame garage, to be reconstructed on property belonging to the trust, under the general contract and at the expense of the Commission. The general contract of the Commission with Bowers Construction Company provided how the buildings should be placed after *295 the removal. In the opinion in Sale v. State Highway & Public Works Commission, 238 N.C. 599, 78 S.E.2d 724, 729, which involved the same parties and the same subject matter here, we said: "The identical contracts offered in evidence in this case by the petitioners were before this Court in Brown v. Bowers Construction Co., 236 N.C. 462, 73 S.E.2d 147, 151. In that case Brown and wife trading as Rock 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.'"
We said in Sale v. State Highway & Public Works Commission, supra, that the Commission cannot be sued in contract, nor in tort. We also said in that case, "it has never been held in this jurisdiction that the State or its agencies can take private property for public use without just compensation. (Citing authorities.)"
This Court said in Eason v. Spence, 232 N.C. 579, 61 S.E.2d 717, 721: "Under Article 1, Section 17, of the State Constitution, no person can be deprived of his property except by his own consent or the law of the land. The law of the land and due process of law are interchangeable terms."
This Court said in Eller v. Board of Education, N.C., 89 S.E.2d 144, 146: "When private property is taken for public use, just compensation must be paid. * * * 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."
This principle is so grounded in natural law and justice that it is part of the fundamental law of the State, Ivester v. City of Winston-Salem, 215 N.C. 1, 1 S.E. 2d 88, and imposes upon a governmental agency taking or appropriating private property for public use a correlative duty to make just compensation to the owner of the property appropriated. Proctor v. State Highway Comm., 230 N.C. 687, 55 S.E.2d 479; Sanders v. Atlantic Coast Line R. Co., 216 N.C. 312, 4 S.E.2d 902.
While practically every state in the Union, North Carolina excepted, contains an express constitutional prohibition against the taking of private property for public use without the payment of just compensation, Jahr, Eminent Domain, Sec. 36, yet North Carolina recognizes this fundamental right to just compensation as founded on natural justice. City of Raleigh v. Hatcher, 220 N.C. 613, 18 S.E.2d 207; Shute v. City of Monroe, 187 N.C. 676, 683, 123 S.E. 71; Johnston v. Rankin, 70 N.C. 550.
The Fourteenth Amendment to the U. S. Constitution provides: "Nor shall any State deprive any person of life, liberty, or property, without due process of law." This amendment is a limitation on the powers of the State. Yarborough v. North Carolina Park Commission, 196 N. C. 284, 145 S.E. 563. It adds nothing to the rights of one citizen against another. It simply furnishes a guaranty against any encroachment by the State on the fundamental rights belonging to every citizen. United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588, 592.
A constitutional prohibition against taking or damaging private property for public use without just compensation is self-executing, and neither requires any law for its enforcement, nor is susceptible of impairment by legislation. People ex rel. Wanless v. City of Chicago, 378 Ill. 453, 38 N.E.2d 743, 138 A.L.R. 1298; People ex rel. Markgraff v. Rosenfield, 383 111. 468, 50 N.E.2d 479; State Highway Comm. v. Mason, 192 Miss. 576, 4 So. 345, 6 So.2d 468; Parker v. State Highway Comm., 173 Miss. 213, 162 So. 162; Virginia Hot Springs Co. v. Lowman, 126 Va. 424, 101 S.E. 326; Nelson County v. *296 Loving, 126 Va. 283, 101 S.E. 406; Angelle v. State, 212 La. 1069, 34 So.2d 321, 2 A. L.R.2d 666; Schmutte v. State, 147 Neb. 193, 22 N.W.2d 691; Rose v. State, 19 Cal. 2d 713, 123 P.2d 505; Tomasek v. State, 196 Or. 120, 248 P.2d 703; Milhous v. State Highway Dept., 194 S.C. 33, 8 S.E.2d 852, 128 A.L.R. 1186; 16 C.J.S., Constitutional Law, § 49, p. 102.
"When the provision of a Constitution, as does ours, * * * forbids damage to private property, and points out no remedy, and no statute affords one, for the invasion of the right of property thus secured, the provision is self-executing, and the common law, which provides a remedy for every wrong, will furnish the appropriate action for the redress of such grievance." Swift & Co. v. City of Newport News, 105 Va. 108, 52 S.E. 821, 824, 3 L.R.A., N.S., 404.
In Angelle v. State, supra [212 La. 1069, 34 So.2d 323], the Court said: "Where private property has been appropriated by the State `for public purposes' the right of the owner to recover adequate compensation will be entertained by the courts as an exception to the principle that the sovereign cannot be sued without its consent."
This Court said in Sandlin v. City of Wilmington, 185 N.C. 257, 116 S.E. 733, 735: "An action against a municipality for damages to property resulting from the performance of a governmental duty cannot be maintained on the theory of a trespass in the absence of statutory or legislative authority conferring such right of action, but this principle does not apply to an action brought to recover damages for property appropriated without due compensation."
When Article 1, Section 17, of the North Carolina Constitution provides that "no person ought to be * * * in any manner deprived of his life, liberty or property, but by the law of the land", and when the fundamental law of this State, based on natural justice and equity, prohibits the taking or acquisition of private property for public use without the payment of just compensation, or its equivalent, and the North Carolina Constitution points out no remedy, and if no statute affords an adequate remedy for the depriving an owner of private property for public use without just compensation, under a particular fact situation, the common law which provides a remedy for every wrong will furnish the appropriate action for the adequate redress of such grievance. Swift & Co. v. City of Newport News, supra; Roe v. Cook County, 358 Ill. 568, 193 N.E. 472; Parker v. State Highway Comm., supra; Tremayne v. City of St. Louis, 320 Mo. 120, 6 S.W.2d 935; Tomasek v. State, supra; Angelle v. State, supra; 16 C.J.S., Constitutional Law, § 49.
In this State when a person has been deprived of his private property for public use nothing short of actual payment, or its equivalent, constitutes just compensation. The entry of a judgment is not sufficient. Sanders v. Atlantic Coast Line Railroad Co., supra; Town of Mount Olive v. Cowan, 235 N.C. 259, 69 S.E.2d 525; People ex rel. Wanless v. City of Chicago, supra; 29 C.J.S., Eminent Domain, § 191, p. 1088.
The courts of the land to preserve the liberty and rights and property of the people, must adhere to the plain stipulations of the fundamental law, and it will be a tragic day in the history of our democratic constitutional form of government, if the courts should ignore the clear mandates of the organic law.
In the obligations assumed by a party to a contract is found his duty, and his failure to comply with the duty constitutes the breach. In Cape Fear & D. R. Navigation Co. v. Wilcox, 52 N.C. 481, Pearson, C. J., said for the Court: "One who prevents the performance of a contract, or makes it impossible by his own act, shall not take advantage of the nonperformance."
*297 This Court said in Steamboat Co. v. Transportation Co., 166 N.C. 582, 82 S. E. 956: "Where parties contract with reference to specific property and the obligations assumed clearly contemplate its continued existence, if the property is accidentally lost or destroyed by fire or otherwise, rendering performance impossible, the parties are relieved from further obligations concerning it. * * * Before a party can avail himself of such a position, he is required to show that the property was destroyed, and without fault on his part. For this reason, and, further, because, by the terms of the present contract, the care and custody of the property was left with plaintiff, if it is established that plaintiff has failed to further perform the executory features of this agreement, the burden would be on plaintiff to show that the steamer was destroyed by fire, and that the plaintiff and its agents were in the exercise of proper care at the time." The quoted part of the opinion relates to a counterclaim set up by defendant against plaintiff by reason of failure to perform on its part.
In the absence of an express contract provision, if the act to be performed is necessarily dependent on the continued existence of a specific thing, the destruction thereof before the performance of the act without the fault of the promisor, will excuse nonperformance of the contract. Stagg v. Spray Water Power & Land Co., 171 N.C. 583, 89 S.E. 47; Annotations 12 A.L.R., p. 127 et seq.; 74 A.L.R., p. 1290 et seq.; 12 Am.Jur., Contracts, p. 944; Williston on Contracts, Rev.Ed., Sec. 1946.
It is our opinion that the obligations assumed by the Commission to remove and reconstruct the buildings on the purchased right-of-way clearly contemplated the continued existence of these buildings. If these buildings were destroyed by fire by reason of the negligence of the Commission, the Commission will be responsible in damages for its negligence. To hold otherwise would permit the Commission to take advantage of the nonperformance of its contract obligations caused by its negligent act.
In the present case there is no allegation in the petition that petitioners were damaged by the negligent manner in which the work was done. Their allegations in substance are that they have been damaged by the Commission's failure without lawful excuse to perform the work they contracted to do in the removal and reconstruction of the buildings on the right-of-way it purchased from them, its failure being that the nonperformance of the Commission's obligations was due to the destruction by fire of the buildings caused by the negligence of the Commission, or its agents.
The consideration of the contract for the purchase of the right-of-way was a payment of $3,622.50, and the removal and reconstruction of the buildings on the right-of-way by the Commission. The Commission is in the possession of the easement of the right-of-way it purchased from petitioners, and it is in use as an integral part of the public road system of the State.
The Commission contends that no statute permits it to be sued for the facts alleged in the petition and that its demurrer should be sustained; that this is an action upon contract or for tort, and that we have held that it cannot be sued in contract or in tort. We do not agree with this contention. This is an action to recover the money consideration for the right-of-way easement, and for damages for the failure of the Commission to perform the obligations it contracted to do as a part of the right-of-way consideration, its nonperformance being caused by its negligence. On demurrer we take the case as made by the complaint. Barber v. Wooten, 234 N.C. 107, 66 S.E.2d 690. The petitioners can maintain their action. To hold otherwise would be depriving petitioners of their property without just compensation in violation of the fundamental law of this State grounded, as we have said time after time, on natural justice and equity, which "is regarded as an integral part of the law of the land' within the meaning of Art. 1, Sec. 17" of the North Carolina Constitution, *298 and in violation of the 14th Amendment to the U. S. Constitution.
We said in our former opinion in this case, Sale v. State Highway & Public Works Commission, supra: "If the petitioners can allege, and prove their contention * * * 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." In our opinion, upon additional thought, and in accord with what this Court said in Steamboat Co. v. Transportation Co., supra, the above quoted statement of law should be corrected so as to read: If the petitioners can allege, and prove, they have been damaged by the respondent's failure to perform any of the work it contracted to do as a part of the consideration for the right-of-way agreement, they can recover such damages, unless the respondent, the burden being upon it, can show that the buildings were destroyed by fire, or otherwise, and it, or its agents, were in the exercise of due care. After proof of the execution of the contract and breach by the promisor, the burden is on the promisor to show an excuse for the breach. United States v. Huff, 5 Cir., 165 F.2d 720, 1 A.L.R.2d 854; 17 C.J.S., Contracts, § 590, p. 1231; Williston on Contracts, Rev. Ed., Sec. 1979. This statement of the law of this case on the former appeal as herein more correctly stated, constitutes the law of the case, is supported by well settled law, and is binding on this appeal. Cherry v. Andrews, 231 N.C. 261, 56 S.E. 2d 703; Howle v. Twin States Express, Inc., 238 N.C. 676, 78 S.E.2d 775.
Article IV, Section 9, of the North Carolina Constitution, reads: "The Supreme Court shall have original jurisdiction to hear claims against the State, but its decisions shall be merely recommendatory; no process in the nature of execution shall issue thereon; they shall be reported to the next session of the General Assembly for its action." By the express terms of this constitutional provision the decision of this Court upon a claim against the State, which it shall hear in the exercise of this jurisdiction, is merely recommendatory. Calkins Dredging Co. v. State, 191 N.C. 243, 131 S.E. 665. Under this constitutional provision this Court cannot enforce its decision. The General Assembly of North Carolina alone has the power to determine whether the decision shall be paid. Rotan v. State, 195 N.C. 291, 141 S.E. 733. It is perfectly obvious that Article IV, Section 9, of the North Carolina Constitution, gives no adequate remedy to a person who has been deprived of his private property for public use without adequate compensation by the Highway Commission. To hold that these petitioners must institute their suit here in the North Carolina Supreme Court would violate the rights guaranteed to them by the 14th Amendment to the U. S. Constitution, by Article 1, Section 17, of the State Constitution, as construed by this Court, and by the fundamental law of this State, based on natural justice and equity.
Upon a fuller consideration of the petitioners' remedy we have come to the conclusion that the proper procedure is not a special proceeding under G.S. § 136-19 and G.S. § 40-12 et seq., that no statute of the State gives an adequate remedy, and that the State Constitution points out no adequate remedy. Therefore, in accordance with the principles of law we have stated above, we hold that the common law gives the petitioners a remedy in permitting them to bring an action at law in the Superior Court, and that it is not necessary for petitioners to allege and prove before institution of action that the petitioners and respondent are unable to agree as to the damages, if any,
Acting under our former opinion petitioners instituted this case as a special proceeding before the Clerk. Upon appeal respondent carried the proceeding into the Superior Court before the judge. Therefore, the Superior Court has jurisdiction to hear and determine the whole matter. G. *299 S. § 1-276; Woody v. Barnett, 235 N.C. 73, 68 S.E.2d 810; Bradshaw v. Warren, 216 N.C. 354, 4 S.E.2d 883; Spence v. Granger, 207 N.C. 19, 175 S.E. 824. The Superior Court will retain this case for determination as an action at law.
The demurrer was properly overruled. Affirmed.
WINBORNE and HIGGINS, JJ., took no part in the consideration or decision of this case.
