Douglas County v. Taylor
| Decision Date | 03 February 1897 |
| Docket Number | 7045 |
| Citation | 70 N.W. 27,50 Neb. 535 |
| Parties | DOUGLAS COUNTY v. J. H. TAYLOR |
| Court | Nebraska Supreme Court |
ERROR from the district court of Douglas county. Tried below before HOPEWELL, J. Affirmed.
AFFIRMED.
J. L Kaley and A. C. Troup, for plaintiff in error:
The action is one sounding in tort for which a county is not liable unless made so by express provision of statute.
If plaintiff had any legal claim against the county it was his duty to file the same with the county board before bringing suit. (Compiled Statutes, ch. 18, sec. 37; Dixon County v. Barnes, 13 Neb. 295; Brown v. Otoe County, 6 Neb. 111; State v. Buffalo County, 6 Neb. 454; Yavapai County v. O'Neill, 29 P. [Ore.], 432; Luzerne County v. Day, 23 Pa. St. 141; Lawrence County v. City of Brookhaven, 51 Miss. 68; Alden v. Alameda County, 43 Cal. 272; Shepard v. Commissioners of Darke County, 8 O. St. 354; State v. Commissioners of Hamilton County, 26 O. St. 369; Richardson County v. Hull, 24 Neb. 536; Fuller v. Colfax County, 33 Neb. 716; Marsh v. Benton County, 39 N.W. [Iowa], 713; Maddox v. County of Randolph, 65 Ga. 216; Powder River Cattle Co. v. Custer County, 22 P. [Mon.], 383; Barbour County v. Horn, 41 Ala. 114; Norwood v. Gonzales, 14 S.W. [Tex.], 1057; McCann v. Sierra County, 7 Cal. 121; Hohman v. County of Comal, 34 Tex. 36.)
If the allegations of the petition are true, the acts complained of were without the jurisdiction of the county commissioners, and therefore void; and ratification by the county would be impossible. (Zottman v. City and County of San Francisco, 20 Cal. 97; Board of Supervisors of Jefferson County v. Arrighi, 54 Miss. 668; Newberry v. Fox, 33 N.W. [Minn.], 333; Lancaster County v. Fulton, 18 A. [Pa.], 384; Dillon, Municipal Corporations [3d ed.], sec. 465.)
County commissioners have only such powers as are expressly granted by statute, or are essential to the due exercise of such powers. (Hamlin v. Meadville, 6 Neb. 227; Walsh v. Rogers, 15 Neb. 311; State v. Lincoln County, 18 Neb. 283; Browning v. Owen County, 44 Ind. 11; Wheeler v. Wayne County, 24 N.E. [Ill.], 625; Daley v. City and County of San Francisco, 13 P. [Cal.], 321; Rowland v. City of Gallatin, 75 Mo. 134.)
A county cannot be bound by any acts of its commissioners not regularly enacted by the board. (Phelan v. San Francisco, 6 Cal. 532; Merrick County v. Batty, 10 Neb. 176.)
A county can be bound by its board upon a contract, only by an affirmative act within the scope of its authority, evidenced by an entry on its minutes. (Bridges v. Clay County, 58 Miss. 817; Crump v. Colfax County, 52 Miss. 107; Dennison v. County of St. Louis, 33 Mo. 168; Mitchell v. St. Louis County, 24 Minn. 459; Murphy v. Napa County, 20 Cal. 498.)
A contract made by county commissioners, to be binding upon the county, must be made by the board at a regular session.
A county is not chargeable with knowledge possessed by an individual member of a county board.
C. A. Baldwin, G. W. Doane, and Robert W. Patrick, contra.
The facts are stated by the commissioner.
Joseph H. Taylor brought this suit in the district court of Douglas county against said county, the individuals composing its board of commissioners, and the city of Omaha, to recover damages which he alleged his real estate had sustained by reason of the grading of a street or highway in front thereof. At the close of the evidence the district court directed a verdict returned in favor of the gentlemen composing the board of commissioners and the city of Omaha which was done and a judgment entered dismissing them out of the action. The case proceeded to trial against Douglas county and resulted in a verdict and judgment in favor of Taylor, and the county brings the same here for review on error.
1. The first argument is that the petition does not state facts sufficient to constitute a cause of action against Douglas county. The petition alleges, in substance, that in the year 1890 plaintiff was the owner of a small tract of land lying in the western part of the then corporate limits of the city of Omaha, in said Douglas county; that running east and west on the north side of plaintiff's land was a public highway; that prior to 1887 this highway on the north side of plaintiff's land was one of the public roads or highways of Douglas county; that at that time the part of said highway east of plaintiff's land was known as Leavenworth street, in said city of Omaha; that in the year 1887 the western boundary of said city was so changed as to put plaintiff's property and the south half of said highway or street in front thereof within the limits of said city of Omaha, and leave the north half of said street in front of plaintiff's property outside the limits of said city of Omaha, but within the county of Douglas; that in the autumn of 1890 the gentlemen constituting the board of commissioners of said county, "while pretending to act in their official capacity, with a strong hand unlawfully, wrongfully, forcibly, and without any authority of law entered upon plaintiff's land with horses, mules, men, and machinery," and made a cut and fill in said street in front of plaintiff's property; that said cut began on the eastern boundary of plaintiff's land and extended west 250 feet, was constructed the full width of the street, and was from eight to twelve feet in depth; that the fill began at the west end of the cut made and extended to the western boundary of plaintiff's land, a distance of 600 feet, was constructed the width of the entire street, and from twelve to twenty feet in height; that the said cut and fill so constructed depreciated in value and damaged plaintiff's land; that in the prosecution of said work said workmen dug and carried away a portion of plaintiff's land lying outside the limits of said street, and used and appropriated said earth so dug and carried away towards the construction of said fill; that in making said fill said workmen so constructed it that several feet of the south line of the base thereof rested on the north end of plaintiff's land, lying outside the limits of said street; that in the prosecution of said work said workmen entered upon plaintiff's land, tore down his fences, cut down his trees, and used and appropriated said trees and fences towards the construction of said cut and fill, to the plaintiff's damage.
(a.) The first contention is that since Taylor's land and the south half of the street or highway north thereof were in the limits of the city of Omaha, that it, and it alone, had jurisdiction and authority to work and repair the south half of said street in front of plaintiff's property; that the county had no jurisdiction or authority to work or repair the south half of said street in front of plaintiff's property, and that the act of its commissioners in constructing the grade and cut in the south half of said street was ultra vires, was void, and that the county is not bound by their action. The property of Taylor and the south half of the street in front thereof was in the city of Omaha, and because of that fact the city had jurisdiction and control over the south half of said street in front of Taylor's property, and it was the city's duty to work, grade, and maintain in proper repair and condition for travel said part of said street. (Compiled Statutes, ch. 78, sec. 33.) The north half of said street in front of Taylor's property was outside the limits of the city of Omaha, but in Douglas county. The county, then, had jurisdiction and control over the north half of said street, and it was its duty to work and maintain in proper condition for travel said north half of said street. (Compiled Statutes, ch. 78, sec. 1.) Such were the duties of the county and city, respectively, as to such street in front of plaintiff's property; but section 1a, chapter 78, Compiled Statutes, passed and approved March 30, 1889, provides that the county board of any county in which any city of the metropolitan class is situate is authorized and empowered to aid in the grading, paving, or otherwise improving of any street leading into said city, and within the corporate limits thereof, by providing for the payment of a certain portion of the cost of such labor. A city of the metropolitan class, namely, the city of Omaha, at the time this grading was done was situate in Douglas county. The street in front of plaintiff's property led into said city, and the street, or at least a part of it, was within the corporate limits of...
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