Jones v. Jefferson County, 6 Div. 963-963-A

CourtSupreme Court of Alabama
Writing for the CourtSOMERVILLE, J. PER CURIAM.
Citation206 Ala. 13,89 So. 174
PartiesJONES et al. v. JEFFERSON COUNTY.
Docket Number6 Div. 963-963-A
Decision Date30 June 1920

89 So. 174

206 Ala. 13

JONES et al.
v.
JEFFERSON COUNTY.

6 Div. 963-963-A

Supreme Court of Alabama

June 30, 1920


On Rehearing, April 7, 1921

Rehearing Denied May 5, 1921

Appeal from Circuit Court, Jefferson County; J.C.B. Gwin, Judge.

Action by Leo Jones and others against the County of Jefferson. Judgment for plaintiffs. From grant of new trial plaintiffs appeal, and defendant by way of cross-appeal assigns as error rulings on original trial. Modified and affirmed.

See, also, 203 Ala. 137, 82 So. 167.

Sayre and Gardner, JJ., dissenting. [89 So. 175]

Pinkney Scott, of Bessemer, for appellants.

W.K. Terry, of Birmingham, and Huey & Welch, of Bessemer, for appellee.

SOMERVILLE, J.

The gravamen of the complaint is the operation by defendant of a sewage plant, whereby a large volume of sewage is collected on the banks of Valley creek in tanks and vats, from which quantities of foul and poisonous substances and fluids are discharged into the creek, poisoning its waters, and rendering them unfit for use, and producing an intolerable stench upon and adjoining lands of plaintiffs, interfering with or preventing their cultivation and their use for stock or for human habitation.

It is settled by the decisions of this court, and is, indeed, a generally recognized principle of law, that counties, when acting, as ordinarily, in their public capacity and as auxiliaries of the state government, are not upon common-law principles subject to liability in tort, and that they can be required to answer to such liability only by virtue of its imposition by statutes or constitutions. Askew v. Hale County, 54 Ala. 639, 25 Am.Rep. 730; Dallas County v. Dillard, 156 Ala. 354, 47 So. 135, 18 L.R.A. (N.S.) 884; 15 Corp.Jur. 568. In the Dallas County Case it was held that counties are liable under section 235 of the Constitution for consequential injuries to property resulting from the construction or enlargement of their works, highways, or improvements, for which, in the absence of condemnation under the statutes, they may be sued in an action on the case.

But in the case of Meharg v. Ala. Power Co., 201 Ala. 555, 78 So. 909, it was held that consequential damage resulting from the maintenance or operation of an authorized dam is not within the scope of section 23, or section 235, of the Constitution. That ruling is a clear negation of any right of action here under those constitutional provisions.

We may here take judicial knowledge of the fact that this sewage plant is being operated by the authorized officers and agents of Jefferson county under the authority granted by the act of February 28, 1901 (Terry's Local Laws of Jefferson County, p. 532); and we think it is clear, upon a consideration of all of the provisions of that act, that the Legislature contemplated and intended full responsibility by the county for any injuries done to private property in the survey and selection of routes for the trunk sewer and its laterals, and also in their construction and enlargement; that is to say, in the exercise of its granted powers of eminent domain. But we do not find in the act any provision for liability of the county, for indirect injuries resulting to adjacent property owners, or lower riparian proprietors, by reason of a nuisance created or aggravated by the maintenance or operation of a sewage plant such as this.

Section 8 of the act provides:

"That the said commission shall have the power and authority to purify sewerage at any point the same may be concentrated, and may erect a purification plant or plants at such place or places as it sees fit, and do everything necessary or needful for the purification or destruction of the sewerage."

But it imposes neither duty nor liability in the premises.

Section 36 of the act does, indeed, provide for and regulate suits against the county for acts done or omitted by the commission or its agents; but this is plainly referable to suits upon those causes of action which are recognized by the act, or authorized by the Constitution, and that provision cannot be extended by any reasonable implication to actions for injuries for which the county would not be liable on common-law principles.

It results that plaintiffs' action against the county cannot be maintained except upon the theory that, with respect to the construction and operation of this sewage plant, and the consequential pollution of the water of Valley creek and of the atmosphere on plaintiffs' land, the county is not acting in a political or governmental capacity, but is acting, quoad hoc, in a merely ministerial capacity, in the performance of a self-imposed corporate duty; and that it ought to be held liable for any resulting injury to private rights, as are other municipal corporations, properly so called.

We are convinced that this theory of the case is sound in principle, and it seems to be fully supported by the authorities. In 15 Corp.Jur. § 272, p. 569, it is said: [89 So. 176] "Also a county is liable for its torts when it is acting, not as a governmental agent, but as a private corporation, or is performing special duties imposed upon it with its consent, or voluntarily assumed by it." Hannon v. St. Louis County, 62 Mo. 313; Barfield v. Macon County, 109 Ga. 386, 34 S.E. 596; Comanche County v. Burks (Tex.Civ.App.) 166 S.W. 470; Coburn v. San Mateo County (C.C.) 75 F. 520; Rowland v. Kalamazoo County, 49 Mich. 553, 14 N.W. 494.

It is true that the statute authorized the construction of this sewage plant, and, by necessary implication, authorized also its operation for the purpose of purifying or destroying the noxious material concentrated and carried by the county sewers. But, as said in Adler & Co. v. Pruitt, 169 Ala. 213, 220, 53 So. 315, 317 (32 L.R.A.[ N.S.] 889), where the subject under consideration was a nuisance caused by the operation of a sewage plant by private parties under contract with Jefferson county, and constructed under this very act:

"In the absence of express statutory provision to that effect, it cannot be assumed that it was intended to legalize an act which would necessarily result in a nuisance, nor can it be assumed that the sewer would have been constructed to discharge a great volume of sewerage at a point where it would seriously interfere with plaintiff's right to enjoy pure and wholesome air in connection with her use of her property but for the provision for its treatment in the purification plant. The plant was authorized, and there is no doubt that it was designed and expected to render the sewerage innocuous."

From the allegations of the complaint in the instant case it appears that the operation of this plant has created a nuisance resulting proximately in actionable injury to plaintiffs, for which, prima facie, the defendant county is liable. The complaint does not show that the county is acting within the authority and to the end authorized by the act of February 28, 1901. Of course if the county is so acting, and is guilty of no negligence in...

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23 practice notes
  • Finnell v. Pitts, 8 Div. 133.
    • United States
    • Supreme Court of Alabama
    • 1 Mayo 1930
    ...of the road, and which may never happen, be ascertained in advance, and compensation made therefor?"' In Jones v. Jefferson County, 206 Ala. 13, 14, 89 So. 174, 175, the gravamen of the complaint was the operation of a sewerage plant whereby a large volume of sewerage was "collect......
  • Crowson v. Cody, 3 Div. 730
    • United States
    • Supreme Court of Alabama
    • 8 Abril 1926
    ...Bk. v. L. & N.R.R. Co., 199 Ala. 192, 74 So. 69; B.R.L. & P. Co. v. Barranco, 203 Ala. 639, 84 So. 839; Jones v. Jefferson County, 206 Ala. 13, 89 So. 174; Crowson v. Cody, 209 Ala. 674, 676, 96 So. 875. It need not be observed that the decree on demurrer to a bill will be confined ......
  • Henderson v. Twin Falls County, 6158
    • United States
    • United States State Supreme Court of Idaho
    • 27 Abril 1935
    ...duties is imposed upon it with its consent or voluntarily assumed by it. (15 C. J. 569; 19 R. C. L. 1109; Jones v. Jefferson County, 206 Ala. 13, 89 So. 174; Hannon v. St. Louis County, 62 Mo. 313; Barfield v. Macon County, 109 Ga. 386, 34 S.E. 596.) J. W. Porter and O. W. Witham, for Respo......
  • Dean v. County Board of Education, 6 Div. 778.
    • United States
    • Supreme Court of Alabama
    • 18 Octubre 1923
    ...pleadings. London v. Sample Lumber Co., 91 Ala. 606, 8 So. 281; M. & G. R. Co. v. Ala. Mid. Ry. Co., supra; Jones v. Jefferson County, 206 Ala. 13, 89 South, 174. The right of eminent domain is an "attribute of sovereignty inherent therein as a necessary and inseparable part thereo......
  • Request a trial to view additional results
23 cases
  • Finnell v. Pitts, 8 Div. 133.
    • United States
    • Supreme Court of Alabama
    • 1 Mayo 1930
    ...of the road, and which may never happen, be ascertained in advance, and compensation made therefor?"' In Jones v. Jefferson County, 206 Ala. 13, 14, 89 So. 174, 175, the gravamen of the complaint was the operation of a sewerage plant whereby a large volume of sewerage was "collected on the ......
  • Crowson v. Cody, 3 Div. 730
    • United States
    • Supreme Court of Alabama
    • 8 Abril 1926
    ...Park Bk. v. L. & N.R.R. Co., 199 Ala. 192, 74 So. 69; B.R.L. & P. Co. v. Barranco, 203 Ala. 639, 84 So. 839; Jones v. Jefferson County, 206 Ala. 13, 89 So. 174; Crowson v. Cody, 209 Ala. 674, 676, 96 So. 875. It need not be observed that the decree on demurrer to a bill will be confined to ......
  • Henderson v. Twin Falls County, 6158
    • United States
    • United States State Supreme Court of Idaho
    • 27 Abril 1935
    ...duties is imposed upon it with its consent or voluntarily assumed by it. (15 C. J. 569; 19 R. C. L. 1109; Jones v. Jefferson County, 206 Ala. 13, 89 So. 174; Hannon v. St. Louis County, 62 Mo. 313; Barfield v. Macon County, 109 Ga. 386, 34 S.E. 596.) J. W. Porter and O. W. Witham, for Respo......
  • Dean v. County Board of Education, 6 Div. 778.
    • United States
    • Supreme Court of Alabama
    • 18 Octubre 1923
    ...the pleadings. London v. Sample Lumber Co., 91 Ala. 606, 8 So. 281; M. & G. R. Co. v. Ala. Mid. Ry. Co., supra; Jones v. Jefferson County, 206 Ala. 13, 89 South, 174. The right of eminent domain is an "attribute of sovereignty inherent therein as a necessary and inseparable part thereof." A......
  • Request a trial to view additional results

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