Dallas County v. Dillard

• Decision Date: 18 June 1908
• Citation: 156 Ala. 354,47 So. 135
• Parties: DALLAS COUNTY v. DILLARD.
• Court: Alabama Supreme Court

47 So. 135

156 Ala. 354

DALLAS COUNTY v. DILLARD.

Supreme Court of Alabama

June 18, 1908

Appeal from City Court of Selma; G. W. Mabry, Judge.

Action by Mary A. Dillard against Dallas county. Judgment for plaintiff, and defendant appeals. Affirmed.

J. R Satterfield, for appellant.

Daniel Partridge, Jr., for appellee.

SIMPSON J.

This suit was brought by the appellee against the appellant to recover for injury to her property. There is no dispute about the facts that the defendant, in improving one of the public roads of the county, so changed the grade opposite to and adjoining the property of the plaintiff as to leave plaintiff's house and premises a considerable distance above the road on a perpendicular embankment, thus destroying ingress and egress for vehicles. The defendant demurred to the complaint, and the exceptions are to the overruling of the demurrer and the rendering judgment for the plaintiff.

The contention of the appellant is that a county cannot be made liable for damages to adjacent property by the cutting down of a public road. Its counsel stresses the fact that no part of the plaintiff's property was "taken," but admits the injury. The general trend of the argument of the appellant is that a county, being merely a quasi corporation a mere governmental agency, is not liable to suit, except in cases indicated by the Constitution or statutes of our state. There are numerous decisions in our own and other states which hold that counties are not endowed with all of the powers and functions of municipal corporations, but are governmental agencies, endowed with corporate powers and functions, and subject to liabilities only in cases indicated by the statute. Consequently they hold that neither the county, nor its board of commissioners, or other officers can be made liable for the negligence of said officers or agencies in performing governmental functions. As stated by this court, speaking through Brickell, C.J.: "It is a quasi corporation in the exercise of its corporate powers and a governmental auxiliary in the exercise of the governmental powers intrusted to it." Askew v. Hale County, 54 Ala. 639, 642, 25 Am. Rep. 730. It is unnecessary to cite all of our decisions on this subject, which may be found in the note to section 1397 of the Code of 1896, which declares that "every county is a body corporate, with power to sue or be sued in any court of record." In the case now under consideration there is no effort to make the county liable for the negligence of any of its officers in the performance of any governmental functions, nor is there any denial of the fact that the county was authorized to do what it did do, as was the contention in the case of Simpson v. Lauderdale County, 56 Ala. 64; but the question is whether, in the exercise of its recognized powers, the county became liable for the injury which necessarily resulted therefrom.

Section 23 of our Constitution of 1901 provides that "private property shall not be taken for, or applied to public use unless just compensation be first made therefor"; so that even the state itself cannot take the property of the citizen without making just compensation therefor, and our decisions are that just compensation includes, not only the land taken, but the injury to the remaining lands. Hooper v. Savannah R. Co., 69 Ala. 529; Com'rs v. Street, 116 Ala. 28, 22 So. 629. This section, however, failed to provide for the case of injury to a person's land by a public improvement, without any actual taking of any part of it; and that distinction is emphasized in the appellant's brief in this case. An additional section was placed in our Constitution of 1875, and carried forward into our present Constitution of 1901 (section 235), providing that "municipal and other corporations, and individuals, invested with the privilege of taking property for public use, shall...