Vesely v. Charles Mix Cnty., 8237.

• Decision Date: 15 July 1939
• Docket Number: No. 8237.,8237.
• Citation: 66 S.D. 570,287 N.W. 51
• Parties: VESELY v. CHARLES MIX COUNTY et al.
• Court: South Dakota Supreme Court

66 S.D. 570

287 N.W. 51

VESELY

v.CHARLES MIX COUNTY et al.

No. 8237.

Supreme Court of South Dakota.

July 15, 1939.

Appeal from Circuit Court, Charles Mix County; A. B. Beck, Judge.

Action by William Vesely against Charles Mix County, S. D., a body politic, and another for damages caused by construction and maintenance of improvements on a public highway adjacent to the plaintiff's premises. From an order overruling a demurrer to the complaint, the named defendant appeals.

Reversed.

R. K. Janda and F. B. Morgan, both of Wagner, for appellant Charles Mix County.

Paul A. Kern, of Lake Andes, for respondent.

ROBERTS, Justice.

This is an action against Charles Mix County and White Swan Township, brought to recover damages alleged to have been caused by the construction and maintenance of improvements on a public highway adjacent to the premises of the plaintiff. A demurrer to the complaint having been overruled, the defendant county appeals.

[1][2] It is alleged that by reason of interference with the natural and normal flow of water by the failure of the defendants to place culverts in a grade constructed by them and the improper location of a bridge “surface waters accumulated and backed up on the lands of the plaintiff after rainstorms and remained stagnant thereon for long periods of time” destroying crops, and that these damages were “due entirely to the negligence of the defendants in the construction” of the grade and “to the negligence of the defendant Charles Mix County in the construction and maintenance” of the bridge. Counsel for plaintiff asserts that these damages caused by defendant are within the contemplation of Section 13 of Article VI, State Constitution, providing that “private property shall not be taken for public use, or damaged, without just compensation”; that by necessary implication the state has consented to actions against counties for injuries to private property “damaged” by them. This Section of the Constitution has reference to private property “taken” or “damaged” as is contemplated in the exercise of the power of eminent domain. The cause of action sought to be stated by plaintiff is based upon negligence and not for the damaging of private property without compensation. The constitutional provision under consideration was never intended to apply to damages based upon the negligent construction or design of a public work. The question whether there is an implied consent under the constitution to sue the state or one of its governmental subdivisions to recover damages caused by the exercise of the power of eminent domain is not involved.

[3][4][5][6] The defendant county contends that it exercises a delegated function of sovereignty in constructing and maintaining highways and bridges and is not liable in the absence of statute authorizing an action against it for negligent performance of such duty. The general rule that a county is not liable for an injury caused by the negligent construction and maintenance of public highways and bridges, unless liability is expressly fixed by statute, is too well settled to require discussion. See Bailey v....