Angelina County v. Bond

• Decision Date: 18 April 1929
• Docket Number: (No. 1792.)
• Parties: ANGELINA COUNTY v. BOND.
• Court: Texas Court of Appeals

16 S.W.2d 338

ANGELINA COUNTY v. BOND.

(No. 1792.)

Court of Civil Appeals of Texas. Beaumont.

April 18, 1929.

Rehearing Denied April 24, 1929.

Appeal from District Court, Angelina County; C. A. Hodges, Judge.

Action by C. A. Bond against Angelina County. Judgment for plaintiff, and defendant appeals. Reformed and affirmed.

Tom F. Coleman and C. E. Brazil, both of Lufkin, for appellant.

J. J. Collins, of Lufkin, for appellee.

O'QUINN, J.

Bond brought this suit against Angelina county to recover damages for the overflow of certain farm lands alleged to have been caused by the construction by the defendant county of a public road in such way as to back the surface water upon his land and to destroy certain growing crops. The defendant county answered, the cause was tried to the court without a jury, and judgment entered for plaintiff in the sum of $750. Motion for a new trial was overruled, and the county has appealed.

Appellant presents many assignments of error, but we shall discuss only a few of them. The main contention of appellant is that, since the county did not take or appropriate any part of appellee's property, and, since, furthermore, the county would not be liable for the negligent acts of its officers or agents in the construction of the public road adjacent to appellee's property, the judgment is erroneous because not supported by the facts pleaded or proved.

Appellee's cause of complaint is that in constructing an established public road or highway through or across his farm, the county built up an embankment some five to eight feet high and about three-quarters of a mile long, situated in the Procella creek and Angelina river bottoms, without placing the necessary culverts or openings, in such way as to obstruct the natural flow of the surface water from his and a large area of contiguous lands, and to cause the same to back up on and over some 55 or 60 acres of his cultivated farm land, and to destroy his crops. Under the undisputed facts the road was constructed as it was by and under the authority and direction of the county, and there is, therefore, no question of the individual negligence of any of the county's officers or agents in the matter of its construction.

Under the common law a county is not liable for damages growing out of the negligence of its officers or agents. This is the rule in this state, unless such liability is created by statute, either by express words or by necessary implication. Heigel v. Wichita County, 84 Tex. 392, 19 S. W. 562, 31 Am. St. Rep. 63; Nussbaum v. Bell County, 97 Tex. 86, 76 S. W. 430; Harris County v. Gerhart, 115 Tex. 449, 283 S. W. 139. The negligence of Angelina county and its agents was not an issue. Appellee's suit is not based upon the negligence of appellant's officers or agents. His petition alleged a taking of his property for public use without compensation. If in fact appellant took or damaged appellee's property for public use, it rested under the absolute duty to compensate him therefor. Under statutory provisions property may be taken or damaged by counties for public use in establishing and maintaining public roads, and the authority thus given embraces the making of ditches and drains and the building of embankments. It is therefore true, as contended by appellee, that, when this authority is properly exercised, a county may be made liable for damages thereby caused to private property. This would be a case in which liability is expressly imposed upon the county. Article 6730 (6935) (4745) R. S. 1925. Nussbaum v. Bell County, 97 Tex. 86, 76 S. W. 430. The cited article, 6730 (6935), specifically declares: "Whenever it is necessary to drain the water from any public road, the overseer shall cut a ditch for that purpose, having due regard to the natural water flow, and with as little injury as possible to the adjacent landowner; Provided, that in such cases the commissioners' court shall cause the damages to such premises to be assessed and paid out of the general revenues of the county, and in case of disagreement between the commissioners' court and such owner, the same may be settled by suit as in other cases."

In Palo Pinto County v. Gaines (Tex. Civ. App.) 168 S. W. 391, it was held that this statute expressly made a county liable for damages to adjacent landowners for the overflow of lands incident to the construction and maintenance of its roadways. In that case, as in this, the road was so constructed as to cause the surface water to accumulate and back upon and over the plaintiff's land and destroy his growing crops. The county was held liable under the statute just quoted, and the Supreme Court refused a writ of error. See, also, Southern Surety Co. v. McGuire (Tex. Civ. App.) 275 S. W. 845; Harris County v. Gerhart, 115 Tex. 449, 283 S. W. 139; Jones County v. Moore (Tex. Civ. App.) 4 S.W.(2d) 289...