Herr, &C v. Central Kentucky Lunatic Asylum

• Decision Date: 10 May 1895
• Citation: 97 Ky. 458
• Court: Kentucky Court of Appeals
• Parties: Herr, &c v. Central Kentucky Lunatic Asylum.

97 Ky. 458

Herr, &c v. Central Kentucky Lunatic Asylum.

Court of Appeals of Kentucky.

May 10, 1895.

APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION.

ALFRED SELLIGMAN FOR APPELLANT.

O'NEAL & PRYOR AND PHELPS & THUM OF COUNSEL ON SAME SIDE.

A. J. CARROLL, ALBERT S. BRANDEIS AND JOHN BARRET FOR APPELLEE.

JUDGE LEWIS DELIVERED THE OPINION OF THE COURT.

Mary Herr and others brought this action against Central Kentucky Lunatic Asylum, created by statute a body-politic, and in their petition state: That they are, as was their intestate husband and father, owners, in possession of and reside upon a tract of land containing about 300 acres, used as a farm and garden, through which flows a small water-course called Goose Creek; that adjacent to and above their land is a tract of about 400 acres, acquired and held by defendant for use of the Commonwealth, upon which have been erected at expense of the State, buildings extensive enough to accommodate, and which do accommodate, about 1,000 persons, adjudged lunatics, besides about 100 attendants and servants; that defendant has wrongfully built across said creek two dams, making two artificial lakes or ponds, whereby the natural flow of water has been greatly diminished; that defendant dumps and causes to be carried through a sewer from said buildings into the creek all slops, offal and refuse matter of every kind, a large part, though, because of feeble flow of the creek, not all, of which passes through and upon the premises of plaintiffs, whereby water of the creek, formerly used for watering their animals and other farming purposes, has become unfit for any purpose, and the air rendered so noxious and offensive as to make their home unhealthy and untenantable. Wherefore, they ask an injunction against defendant maintaining the alleged nuisance and abatement of it, including removal of the two dams.

But to the petition a general demurrer was sustained, upon the principal ground, as stated in opinion of the chancellor, and now urged in argument, that defendant corporation is but an arm of the State, and, consequently, can not be sued without express legislative authority. In terms of the statute creating defendant a corporation, it is not only given power to sue, but made, without qualification, liable to be sued. And if an action for the cause stated in petition of plaintiffs can not be maintained against it, we are at loss to know what character of default or wrong it could be sued for.

But it seems to us, independent of statutory liability, defendant is answerable for the wrong and injury complained of in the same manner, and to the same extent, as one or more natural persons would be, occupying the same attitude, which is that of agent or officer of the State.

As a necessary consequence of exemption of the State from suit without its consent, an action nominally against an officer, but really against the State, to enforce performance of its obligation in its political...