Unicoi County v. Barnett

• Decision Date: 14 October 1944
• Citation: 182 S.W.2d 865,181 Tenn. 565
• Parties: UNICOI COUNTY et al. v. BARNETT.
• Court: Tennessee Supreme Court

182 S.W.2d 865

181 Tenn. 565

UNICOI COUNTY et al. v. BARNETT.

Supreme Court of Tennessee.

October 14, 1944

Error to Circuit Court, Unicoi County; D. A. Vines, Judge.

Action by Mary Barnett against Unicoi County and others for damages to plaintiff's property from overflow of water caused by construction of a highway. A judgment for plaintiff was affirmed by the Court of Appeals, and defendant county brings error and files a petition for certiorari.

Affirmed and petition denied.

Willard Garland and L. H. Allred, both of Erwin for defendant-plaintiff in error.

Guinn & Mitchell, of Johnson City, for plaintiff-defendant in error.

GREEN Chief Justice.

This suit was brought against Unicoi County by a landowner to recover for damages to her property in consequence of the construction of a highway. There was a judgment in favor of plaintiff below which was affirmed by the Court of Appeals and the County has filed a petition for certiorari.

The declaration avers that by reason of certain construction of the highway water was caused to overflow plaintiff's land and the injury was thus inflicted. It is averred, 'The defendant commenced to build a road in front of her property and in so doing they erected a barrier, etc., etc.,' which resulted in the overflow. In another portion of the declaration it is alleged that defendant created a nuisance and it was liable to plaintiff for the injury ensuing.

From the declaration it is therefore difficult to tell whether the plaintiff was attempting to recover as for damages resulting from the exercise of the power of eminent domain or for damages resulting from a nuisance. Evidence heard in the case was not preserved by a bill of exceptions and it is accordingly not apparent upon what theory the case was tried below. The Court of Appeals has assumed that damages were sought as resulting from the taking of plaintiff's land by expropriation. This assumption we follow since there can be no recovery against the County for the negligence of its employees. Chandler v. Davidson County, 142 Tenn. 265, 218 S.W. 222, which might have sustained recovery on the nuisance theory, has been expressly overruled in Buckholtz v. Hamilton County, 180 Tenn 263, 174 S.W.2d 455.

The plaintiff below has filed no petition for certiorari to review the action of the Court of Appeals and we cannot therefore consider certain matters which we are invited to determine in the reply brief filed by the plaintiff in this case.

The County concedes that prior to Chapter 75 of the Public Acts of 1931 it would have been primarily liable for damages resulting from the...