Board of Education, 201 N.C. 653, 161 S.E. 96;
Hansley v. Tilton, 234 N.C. 3, 65 S.E. 2d 300;
Smith v. Hefner, 235 N.C. 1, 68 S.E. 2d 783), except such liability as may be established under our Tort Claims Act. G.S. 143-291, as amended by S.L. 1955, chs. 400, 1102 and 1361. But our construction of the complaint, which is in accord with the statement of plaintiffs’ counsel on oral argument, is that plaintiffs have neither alleged nor attempted to allege a cause of action in tort.
When private property is taken for public use, just compensation must be paid. This principle is deeply imbedded in our constitutional law. It was incorporated in the Bill of Rights of the Federal Constitution. U. S. Const., Amend. V. 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. McKinney v. High Point, 237 N.C. 66, 74 S.E. 2d 440.
In Price v. Trustees, 172 N.C. 84, 89 S.E. 1066, the distinction is drawn between liability to individuals for injuries tortiously inflicted and liability for the payment of compensation when private property is appropriated under right of eminent domain. See also, Sandlin v. Wilmington, 185 N.C. 257, 116 S.E. 733.
“The creation and maintenance of a government proj ect so as to constitute a nuisance substantially impairing the value of private property, is, in a constitutional sense, a taking within the principle of eminent domain.” Raleigh v. Edwards, 235 N.C. 671, 71 S.E. 2d 396, and cases cited. There need not be a seizure, whereby the owner is dispossessed. It is a sufficient taking to require payment of compensation if the value is substantially impaired. In such case, the compensation to be paid is based on the impairment of value caused by the injury so inflicted. McKinney v. High Point, supra; Sandlin v. Wilmington, supra. This is in accord with the weight of authority elsewhere. 29 C.J.S., Eminent Domain, sec. 110.
If defendant impeded the natural flow of the spring branch and caused water and mud to accumulate and back up on plaintiffs’ property, as alleged, whether this constituted a taking would seem to turn on whether the value of plaintiffs’ property was effectually and appreciably impaired thereby. 18 Am. Jur., Eminent Domain, sec. 134. But apart from that, if the sewage disposal device was constructed and operated so as to cause sewage to flow or seep onto plaintiffs’ land and, by reason of such continuous pollution and the noxious odors emanating continuously therefrom, plaintiffs’ spring was rendered unfit for use and their dwelling was rendered unfit for habitation, as alleged, such would constitute a taking to the extent of the impairment in value of plaintiffs’ land caused thereby. Sandlin v. Wilmington, supra; Clinard v. Kernersville, 215 N.C. 745, 3 S.E. 2d 267; Young v. Asheville, 241 N.C. 618,