Mayer v. Studer & Manion Co.

• Decision Date: 05 November 1935
• Docket Number: No. 6377.,6377.
• Court: North Dakota Supreme Court
• Parties: MAYER v. STUDER & MANION CO. et al.

66 N.D. 190

262 N.W. 925

MAYER

v.STUDER & MANION CO. et al.

No. 6377.

Supreme Court of North Dakota.

Oct. 18, 1935.

Rehearing Denied Nov. 5, 1935.

Syllabus by the Court.

1. The county in constructing and maintaining highways is an agency of the state, and its liability to suit is based upon statutory or constitutional consent.

2. Where the state or an agency thereof acting in a sovereign capacity takes or damages private property for public use without legal exercise of the power of eminent domain, the aggrieved party may recover compensation for the property thus taken or compensation for the damages to his property thus inflicted.

3. Complaint examined, and it is held that for reasons stated in the opinion the demurrer thereto should be sustained.

Appeal from District Court, Stark County; Harvey J. Miller, Judge.

Action by Max Mayer against the Studer & Manion Company, Stark County, and others. From an order overruling a demurrer to the complaint as respects Stark County and certain other defendants, Stark County appeals.

Reversed.

Jacobsen & Murray, of Mott, for respondent.

Theo. C. Kellogg, of Dickinson, for appellant.

MORRIS, Judge.

[1][2][3] Stark county appeals from an order of the district court overruling a demurrer to plaintiff's complaint in a suit brought to recover damages growing out of the construction of a culvert and grade on a public highway adjacent to plaintiff's land. The suit was brought against the contractor that built the highway, its surety company, Stark county, and the state highway commission. The trial court sustained a demurrer to the complaint on the part of the contractor and its surety company, but overruled the demurrer as to the other defendants. Stark county alone appeals. The complaint states the corporate or official status of the various defendants, and alleges that the county and state highway commission constructed the highway in question. It alleges the advertisement for bids and letting of the contract, and further states:

“That at all times herein mentioned the plaintiff was and is the owner of real estate, to-wit, a farm adjacent to and adjoining said highway and project, on the West side thereof, and approximately thirteen (13) Miles south of the city of Richardton, and located in Stark County, North Dakota; that the buildings on said farm, including the plaintiff's dwelling house and home are about 150 feet from the West border line of said highway.

That pursuant to said contract and letting the defendant, Studer & Manion Company, did during the year of 1931, undertake the construction and did construct and regrade said project, including that portion traversing the plaintiff's said land as aforesaid; that at the place where said highway and project passes plaintiff's said adjoining land and buildings, there was and is a valley wherein flows flood waters of the surrounding territory, crossing said highway at the point where said highway passes plaintiff's said buildings, and farm.

That the said defendant, Manion & Company, in the grading and construction of said project across said valley and creek, carelessly and negligently constructed the culvert and grade off said highway, by then and there constructing a small culvert, far too small to carry off said flood waters, and the natural flow of water in said valley & creek, and carelessly and negligently constructed at said point, a high grade, preventing the water from flowing across the road; that all of said defendants carelessly and negligently directed, acquiesced, consented and permitted the said defendants, Studer & Manion Company, to so negligently and carelessly construct said grade, and culvert at said place afore mentioned, and thereafter carelessly and negligently permitted said high grade and defective and deficient culvert to remain in such negligent condition, and that at all times all of the defendants well knew that same would stop the natural flow of flood waters, and cause same to back up and spread on to plaintiff's said land afore mentioned and into his buildings; and well knew that same would cause the plaintiff great damages, and with said knowledge, never took any steps or action to rectify or correct same; that by reason of the negligence afore mentioned, to-wit, the negligent construction of said highway and culvert, and the maintenance of same by all of the defendants, same caused the natural flow of waters to be stopped at said point where said highway crosses said valley and creek on plaintiff's farm as aforesaid, and did then and there and thereafter, and especially in the fall of 1931, and in the spring of the year 1932, cause the flow of water in said valley and creek to be plugged up and stopped and to back up and spread upon the plaintiff's said land and into his buildings including his dwelling house, thereby ruining the plaintiff's farm and said buildings, and causing ...