Sherlock v. Mobile County

• Decision Date: 22 May 1941
• Docket Number: 1 Div. 112.
• Citation: 2 So.2d 405,241 Ala. 247
• Parties: SHERLOCK, State Highway Director, et al. v. MOBILE COUNTY et al.
• Court: Alabama Supreme Court

2 So.2d 405

241 Ala. 247

SHERLOCK, State Highway Director, et al. v. MOBILE COUNTY et al.

1 Div. 112.

Supreme Court of Alabama

May 22, 1941

Thos S. Lawson, Atty. Gen., and W. W. Callahan, Asst. Atty Gen for appellants.

V. R. Jansen, of Mobile, for appellees.

BROWN Justice.

The appellees [respondents], in consideration of the execution of the obligation, a copy of which is attached to the bill as "Exhibit 1", induced and authorized the complainants to construct a strip of highway in Mobile County, approximately a mile and a thousand feet in length without costs to the county other than as expressed in said obligation, to wit:

"The County of Mobile hereby agrees to save harmless the State of Alabama, the State Highway Department, members of the State Highway Commission, the Contractor or Contractors, and their respective agents and employees from all consequential damages occurring to any person, firm or corporation by reason of the construction of the above-described project and in case of claims for damages, the County agrees to settle or pay all such claims, either out of court or in court proceedings, together with all costs incurred in connection therewith.

"The County agrees that in case suits are brought against the State of Alabama, the State Highway Department, members of the State Highway Commission, the Contractor or Contractors, and their respective agents and employees to intercede and assume all liability for said suits, to pay the claimants such sums as may be assessed by the courts, including all court costs, together with all attorney's fees or legal fees that may have accrued to the State, State Highway Department, members of the State Highway Commission, Contractor or Contractors, and their respective agents or employees by reason of such claims, suits or judgments." [Italics supplied.]

The project was designated in the plans and specifications prepared by the State Highway Department; through its engineering force as "W. P. G. S.-376-Mobile County, Alabama," and involved the separation of the grade of the highway from the G. M. & N. Railroad and the Railroad Company contributed $6,000 to the project, which was accepted by the County. As a consequence of the construction, suits have been filed by landowners adjacent or abutting, for damages, against the individual members of the Highway Commission, the contractor who performed the work, and the Railroad Company, claiming damages to their property; one alleging that the improvement of the highway interfered with the natural drainage therefrom; and others alleging that said improvement obstructed egress and ingress to their properties.

The contention of appellees is that the obligations of said writing, "Exhibit 1", is ultra vires the county.

The improvement was of a county highway within the jurisdiction of the county, and the county acting through its official board had the legal right to make the improvement, also had legal authority to enter into the arrangement with the State Highway Commission to have the work done and supervise the same, and the county was authorized to acquire the...