Rainey v. Hinds County

• Decision Date: 17 December 1900
• Court: Mississippi Supreme Court
• Parties: JOHN B. RAINEY v. HINDS COUNTY

28 So. 875

78 Miss. 308

JOHN B. RAINEY v. HINDS COUNTY

Supreme Court of Mississippi

December 17, 1900

October 1900

FROM the circuit court, first district, of Hinds county HON ROBERT POWELL, Judge.

Rainey the appellant, was the plaintiff in the court below; Hinds county was defendant there. The suit was for damages to land belonging to the plaintiff. The declaration averred that the county, through the board of supervisors; had caused the grade of a highway to be elevated, creating a causeway, and that the work was improperly done, in that there were no openings left for the escape of water, and, as a consequence the plaintiff's adjacent lands were flooded with water and a pond was formed thereon covering four acres of the land, to plaintiff's damage, his homestead being rendered thereby uninhabitable, etc.; that the defendant had been requested to properly drain the land by making openings under the causeway, but had refused to do so, and had refused to compensate the plaintiff for the damage done him, etc. The county demurred to the declaration; the court below sustained the demurrer and dismissed the suit. The plaintiff appealed to the supreme court.

Reversed and remanded.

Harper & Potter, for appellant.

The doctrine of nonliability of a county for injury to property, whether direct or consequential, has been changed by our constitution of 1890, which provides that property shall not be taken or damaged for public use without due compensation to the owner. Fortunately this question is not left open to the uncertainties of argument, but has been settled by well considered adjudications, which seem to us to be conclusive of the question. City of Vicksburg v. Herman, 72 Miss. 211; Copiah County v. Lusk, 77 Miss. 136; Chester County v. Brown, 117 Pa. St., 647; Delaware County Appeal, 119 Pa. St., 159; Tyler v. Tahama County, 109 Cal. 618.

But it is insisted by appellee that such decision refers merely to municipalities and such like, and not to counties. To that we say that the provisions of the constitution are as broad as language can make them. It refers to anybody, everybody, who damages another man's property, whether directly or consequentially, by any sort of public user. The state itself is clearly within its terms, and surely if the creator must respect and be governed by its terms, the state legislature cannot create an agency, call it a county, let it damage property by public user, and thus escape the provisions of the constitution to which it itself is amenable. Certainly the provision is as broad in its scope in forbidding the damaging as in forbidding the taking of private property for public use. A county that invades and takes private property for public use is liable in an action of trespass on the case for such damages, although there is no statute giving such a remedy expressly. The case of Copiah County v. Lusk, supra, decides that point directly.

The identical question involved has been passed on in California and Pennsylvania, which states have recently made substantially the same changes in their constitutions as we have made in ours. The contentions here urged, with others, were fully considered by the courts of those states, and in both jurisdictions it has been expressly held that counties are liable for such injuries; and in both states it had been previously held, as in this state, that counties were not liable at common law in such cases. Cases supra.

So far as our examination has gone, and we think it has been thorough, we find no case holding any other view. There are only four or five states that have similar constitutional provisions, and in every one in which this question has arisen it has been decided in favor of our contention.

Williamson, Wells & Croom, for appellee.

In an elaborate note in 39 L.R.A. 33, the authorities on the subject of the liabilities in cases of this kind are collated, and the law is summarized by the statement that "the weight of authority is conclusive against imposing any implied liability on counties for negligence in the construction, care and use of public property or for torts or negligence of county employes."

The counties of this state are in certain respects municipal corporations, charged with the duty of making provisions for the building of bridges and the making of roads, and this duty is committed to the boards of supervisors of the respective counties, and their duties in these respects are defined by statute.

As to roads, the boards of supervisors are required to divide the public roads into convenient links, and to appoint annually one overseer of each. It is made the duty of the overseer to keep the roads, bridges and causeways in his district in good repair, and, on his failure to do so, he is liable to indictment and fine. He is required to put up mileposts and signboards, and to repair damages to bridges and causeways, and to make semiannual reports to the boards of supervisors. Chapter 17, annotated code. From the provisions of the statute it is manifest that the duty of building causeways and working public roads and keeping them in repair is committed to the overseers of roads in each county.

The powers of the board of supervisors and of the county are statutory, and, taking it as true that the "county made a causeway and raised the highway, " it must be presumed that this was done in accordance with statutory authority.

Looking to the statute, we find that the only authority given whereby the counties are authorized to "make" causeways and to "raise highways, " is the power and the duty of appointing overseers of the roads and the right to specify work to be done on the road by the labor of the hands assigned thereto. Section 3904, annotated code.

If a causeway is necessary, and cannot be made with the labor of the hands belonging to the road, the board of supervisors is authorized to contract for building and keeping the same in repair. Section 3937, annotated code.

In no other way could the county have lawfully "made the causeway" on the road in question, and it is therefore conclusively presumed that the causeway was either built by the road hands or by a contractor.

But counties are not liable for the wrongful acts of persons who have been appointed by the county, in obedience to statutory provisions, and where their duties are prescribed by law with penalties for their nonperformance. Sutton v. Board of Police, 41 Miss. 239. The duty imposed by the statute as to contracts for building and keeping in repair causeways, is the same as that required and imposed as to bridges. It was said by this court in Brabham v. Hinds County, 54 Miss. 364: "At common law a county could not be so held liable. A county can have no liability except as authorized expressly or by necessary application by some statute. Counties are political divisions of the state created for convenience. The right to maintain a suit like this, against a county, is not only outside the contemplation of the statutes, but is opposed by every consideration of sound policy." Threadgill v. Anson Co., 99 N.C. 352; Dosdall v. Omsted Co., 30 Minn. 96; Winn v. Com of Gage, 5 Neb. 494; Downing v. Mason Co., 87 Ky....