Nelson County v. Coleman

• Decision Date: 20 November 1919
• Citation: 101 S.E. 413
• Parties: NELSON COUNTY. v. COLEMAN.
• Court: Virginia Supreme Court

101 S.E. 413

NELSON COUNTY.

v.COLEMAN.

Supreme Court of Appeals of Virginia.

Nov. 20, 1919.

Error to Circuit Court, Nelson County.

Proceedings by L. M. Coleman against Nelson County. Judgment for the former, and the latter brings error. Affirmed.

S. B. Whitehead, of Lovingston, for plaintiff in error.

L. Grafton Tucker, of Lovingston, for defendant in error.

PRENTIS, J. During the year 1915 the county of Nelson condemned certain land of Mrs. L. M. Coleman for a county road. The viewers allowed her $500 for land and fences damaged, and, not being satisfied, she moved for commissioners, who allowed her $435. She appealed from the board of supervisors to the circuit court of Nelson county, which affirmed the action of the board, and a warrant was issued and accepted by her for $435. No construction work was done on the road at that point until the year 1916, when the road contractor, under the direction of the member of the board of supervisors for the district in which the road was located, proceeded to construct the road. By mistake the contractor failed to construct it upon the land which had been condemned and did not follow the row of stakes which had been placed to indicate the true location of the road. This mistake came to the attention of the supervisor having charge of the matter after the land had been plowed and some apple trees had been destroyed, but he, being of opinion that Mrs. Coleman had not been injured, instructed the contractor to proceed with the construction on the wrong location. The board of supervisors has not repudiated this action, and the road has been constructed on this wrong location.

On July 10, 1918, Mrs. Coleman filed her claim before the board of supervisors of Nelson county for $600 damages for the land taken and the construction of the road on the wrong location, and the damages to the residue of her land otherwise sustained because of such appropriation of her land for the road without authority. The claim was disallowed by the board of supervisors, and an appeal was taken to the circuit court. The county filed a demurrer to the claim, which was overruled. The case was afterwards tried before a jury, and there was a verdict and judgment against the county for $300, of which it is here complaining.

These errors are assigned:

1. That the trial court erred in overruling the defendant's demurrer to the claim of the plaintiff.

In support of this assignment it is contended that the action is necessarily an action in tort, and that therefore the county cannot be sued upon such a claim. The case of Fry v. County of Albemarle, 86 Va. 195, 9 S. E. 1004, 19 Am. St. Rep. 879, is relied upon. While there can be no doubt whatever about the fact that neither counties, which are political subdivisions of the state, nor the state or its governmental agencies, can be sued in tort (Stuart v. Smith Courtney Co., 123 Va. 231, 96 S. E. 241), it is also generally true that, where a tort is committed which involves an injury to personal property, the plaintiff may waive the tort and sue upon an implied contract to pay for the property which has been wrongfully taken, damaged or converted to the defendant's use. Of this as a general doctrine there can be no doubt whatever. Tidewater Quarry Co. v. Scott, 105 Va. 160, 52 S. E. 835, 115 Am. St. Rep. 864, 8 Ann. Cas. 736; Maloney v. Barr, 27 W. Va. 381; Walker v. N. & W. R. Co., 67 W. Va. 273, 67 S. E. 722; McDonald v. Peacemaker, 5 W. Va. 439; Brown's Estate v. Stair, 25 Colo. App. 141, 136 Pac. 1003; Louisiana v. Wood, 102 U. S. 299, 26 L. Ed. 153; Burks' Pl. & Pr. 123.

This rule has been applied in Virginia to a state agency in the case of Eastern Lunatic Asylum v. Garrett, 27 Grat. (68 Va.) 163. There the plaintiff was allowed to recover the value of corn and bacon which had been seized by the military forces of the United States during the war between the states; it appearing that the seized property had been sent to the Eastern Lunatic Asylum, and used for the maintenance of the inmates therein. The plaintiff's property there having been converted to the use of the corporation for the same purpose for which the asylum authorities had authority to purchase it, the court held that it should be paid for, and that an action would lie to compel such payment. Maia's Adm'r v. Eastern State Hospital, 97 Va. 507, 34 S. E. 617, 47 L. R. A. 577, holds that a state agency is not liable in damages for a personal injury inflicted on an inmate of the asylum in consequence of the negligence or misconduct of the officers, agents, or employes of the corporation, and this because the state has not authorized it to be sued in tort.

In the case in judgment the board of supervisors were authorized to condemn the land for a public road upon paying the owner its value and the consequential damages caused by the construction of the road. Having taken the property without authority and converted it to the public use, no reason is perceived in this case for...