Covington County v. Watts

• Decision Date: 30 June 1919
• Docket Number: 20819
• Citation: 120 Miss. 428,82 So. 309
• Court: Mississippi Supreme Court
• Parties: COVINGTON COUNTY v. WATTS

82 So. 309

120 Miss. 428

COVINGTON COUNTY v. WATTS

No. 20819

Supreme Court of Mississippi

June 30, 1919

Division B

1. CONSTITUTIONAL LAW. Eminent domain. Highways. Claim for damages due to construction of road. Liability.

Under section 17, of the Constitution of 1890, providing that "private property shall not be taken or damaged for public use, except on due compensation being first made to the owner," a county is liable to the owner for damage to land which it wrongfully caused to be covered with water by the improper construction of a public causeway.

2 SAME.

Where the board of supervisors let a contract for road construction in a road district created under Laws 1912, chapter 145, and approved the plans and specifications and accepted the work as being in accordance with the contract, the county is liable for damages to the owner's land due to placing a culvert at a height not less than twelve inches above the bottom of a ditch which was filled up in the construction of the road.

3 SAME.

In such case the plain provisions of section 17 of the Constitution and the equally plain provision of Code 1906, section 3894 that the board of supervisors shall allow and pay such damages, justifies a suit by the owner against the county.

4. EMINENT DOMAIN. Damages due to construction of highway. Liability of county or road district.

Although the county board created a separate road district and appointed highway commissioners, the county and not the district is liable for damages if any, due to construction of a highway in the district, in view of Constitution 1890 section 170, giving boards of supervisors full jurisdictions over roads, and Laws 1912, chapter 145, in conformity with which the road district was created, limiting the powers of the commissioners so that they are not effective until approved by the board of supervisors.

HON. W. H. HUGHES, Judge.

APPEAL from the circuit court of Covington county, HON. W. H. HUGHES, Judge.

Suit by T. H. Watts against Covington County. From a judgment for plaintiff, the county appeals.

The facts are fully stated in the opinion of the court.

Judgment affirmed.

E. L. Dent, for appellant.

In the case of Rainey v. Hinds County, 78 Miss. 308, this court held: "It seems to be settled in this state that a county is not ordinarily liable to suits except in cases provided by law. This exemption is placed upon the ground that a county is a governmental agency, created for local purposes, and in this regard it partakes of the immunity of the state itself." In this Rainey case, supra, it is further said: "It will be noted that this is not a suit against the county because of injurious acts committed by a road overseer, contractor of works or other agents of the county, but against the county for its own wrongful acts. It has been held that a county is not liable to suit for the acts of such agents."

The case at bar is exactly like the Rainey case, supra, and when this case was again before this court as it appears in 79 Miss. 238, on the competency of the conversation between appellant and Mr. Cranfron, a member of the board of supervisors and the motion for a peremptory instruction, this court says: "That the bad construction of the causeway was brought to their attention--attention of the board--and they failed to intervene in behalf of the plaintiff, does not render the county liable for the injury."

Upon the authority as announced in this Rainey case, supra, the court should have sustained the motion of appellant for a peremptory instruction, which motion is in part as follows: See record page 78. "The defendant is not liable for the filling up of the culvert and the overflowing of plaintiff's land, if it was overflowed, and that it was the act, if it was improperly put in it, was an act on the part of the agents of the county, for whose acts the county is not liable."

No wanton or wilful wrong is shown on the part of the county, and I respectfully submit that the incompetent testimony above referred to, the refusal of the court to sustain the motion for a peremptory instruction, and the refusal by the court of the instruction as appears in record on page 115 is all against the law as announced in this Rainey case, supra, and that the action of the court in permitting such testimony over proper objections, and the refusal to grant the peremptory instruction and the instruction complained of, is such a manifest error that this case should be reversed and remanded, or reversed and a judgment given here for the county appellant.

McIntosh & Tew and T. W. Cranford for appellees.

Counsel for appellant cites the case of Rainey v. Hinds County, 78 Miss. 308, which case was before the supreme court again and is reported in 79 Miss. 238, quotes extracts therefrom and says the case at bar is exactly like this case; with this we concur except the work done in the Rainey case was done by the overseer as it developed in the trial of the cause and referred to by the supreme court in its final decision, but the court in commenting upon the declaration in the Rainey case when it was first before it on demurrer said on page 314: "The board of supervisors represented the county. Board v. Nile, 58 Miss. 48; State v. Fortenberry, 54 Miss. 316. And it is authorized by section 3904 to direct what hills are to be cut down or other special work is to be done. The allegations of the declaration in this case carry the idea and are equivalent to the charge that the board of supervisors have directed the making of an embankment here complained of, and which has, it is said, destroyed the beneficial use of a part of plaintiff's property and created a private nuisance, which has rendered his residence unfit for the habitation of himself and family. It is apparent from the statement of the declaration that suitable drains would have saved the infliction of the grievious wrongs complained of and we reasonably suppose that if such wrongs had been committed by a road overseer, the law would not leave the plaintiff without redress and as against the defendant below we think the plaintiff has brought himself within the letter and spirit of our constitution and statute upon the subject. See, also, Copiah County v. Lusk, 77 Miss. 136."

In the final trial of the Rainey case as reported in 79 Miss., it developed that the work that was done that caused the damage was done by road overseer not under the special direction of the board of supervisors and was held of course that the county was not liable for his acts. In the case at bar the board of supervisors furnished plans and specifications profile and blue prints showing exactly the fill to be made, and the size culvert to be placed in fill in appellee's land, all of which was done by order of board of supervisors in regular session spread upon their minutes, thereby making the act of the contractor the act of the county, whereby it took the private property or a beneficial interest therein for public use for which a jury said one hundred dollars was due compensation to...