Wilson v. State Highway Comm'r

• Decision Date: 09 October 1939
• Citation: 4 S.E.2d 746
• Parties: WILSON et al. v. STATE HIGHWAY COMMISSIONER.
• Court: Virginia Supreme Court

4 S.E.2d 746

WILSON et al.

v.STATE HIGHWAY COMMISSIONER.

Supreme Court of Appeals of Virginia.

Oct. 9, 1939.

Error to Circuit Court, Lee County; E. T. Carter, Judge.

Notice of motion for judgment by Frank K. Wilson and another against the State Highway Commissioner, in his official capacity, and others, as individuals, for damages alleged to have resulted from defendants' negligence in the construction of a highway through plaintiffs' lands. To review a judgment sustaining a motion by the named defendant to dismiss the action, plaintiffs bring error.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, J J.

George M. Warren and H. E. Widener, both of Bristol, and Hagan Richmond, of Gate City, for appellants.

Abram P. Staples, Atty. Gen., for appellee.

BROWNING, Justice.

This case grows out of condemnation proceedings which were had by the Virginia State Highway Commissioner for the purpose of constructing a road, which is a part of the highway system of the State, through the lands, in Lee County, Virginia, of the plaintiffs in error, Frank K. Wilson and Sarah E. Wilson.

Five Commissioners were appointed under the appropriate statute to ascertain what would be a just compensation for the land proposed to be taken, "and to assess the damages, if any, resulting to the adjacent or other property of said tenants and owners, or to the property of any other person, beyond the peculiar benefits that will accrue to such properties, respectively, from the construction and operation of the said State Highway Commissioner's road and works." Four of the five commissioners qualified and acted as such and reported that the land to be taken and included in the highway projected through the defendants' property was 5.48 acres, more or less, and that a just compensation for the land so taken was $1,150 and that the damages to their property, by reason of the construction and operation of the road and works, beyond the peculiar benefits that would accrue to them, was $1,625. The total sum allowed was $2,775, which was paid to and accepted by the defendants.

Some fifteen months after the payment of this money to them, the defendants, by notice of motion, instituted a suit against the State Highway Commissioner, in his official capacity, and H. G. Shirley and W. W. McClevy, as individuals, in the circuit court of Lee county, Virginia, for a judgment for $10,000. which was alleged to be due the plaintiffs because the defendants had been guilty of negligent and unlawful acts in the construction of the said highway, causing the plaintiffs great injury and damage, which was not contemplated by, and therefore not taken into consideration by the commissioners, who assessed the damages occasioned by the said road construction work.

The elements of the alleged damage were enumerated as follows: The construction of a drain pipe under the road which caused bad washes; the level of the road was so changed as to make it difficult to drive from the barn to the highway; the destruction of a pipe line conveying water to the residence; injuries to a tenant house caused by blasting; changing the approach to the tenant house; damming the creek and causing its overflow because of rock and debris thrown therein; injuries to a lot of some five acres by driving and parking trucks thereon; and causing the creek to sink for a considerable portion of its course through the said lands; and also for wrongfully and unlawfully taking approximately one-third of an acre of land belonging to the plaintiffs, which was not included in the acreage already referred to.

The notice of motion contained, in part, the following:

"Yet, notwithstanding the duty of the defendants, and each of them, under the law and under said condemnation proceedings, the defendants, and each of them, wholly failed to comply with their duty under the law under said condemnation proceedings, in that in the construction, completion and maintenance of said highway the said defendants, and each of them, through their servants, agents, employes and contractors, who were acting under their authority and at their discretion, proceeded to violate the rights of the plaintiffs in the following particulars, among others: Defendants, and each of them, greatly encumbered the portion of the farm, not condemned, and hindered the plaintiff from having the use, benefits, and enjoyment thereof in so large and ample a manner as they otherwise might or would have had.

******

"All of the foregoing enumerated acts complained of by plaintiffs were unlawfully committed by the defendants, and each of them, by themselves, and through their servants, agents, and employees, and contractors in violation of the rights of plaintiffs and beyond the limits of the title and right acquired by the defendants in said condemnation proceedings; * * *."

The notice of motion or pleading ended with the following averment:

"Wherefore, plaintiffs aver that they have been damaged by said negligent and unlawful acts of the defendants, and each ofthem, in the amount of $10,000.00, for which judgment will be asked as aforesaid."

The plaintiffs amended the notice of motion by laying claim to damages for the alleged unlawful and wrongful taking and appropriation of one third of an acre of land which has been referred to.

The defendants filed a special plea to the notice of motion assailing the alleged right of a private individual to institute an action for damages against the Highway Commissioner as a public official and alleging that the damages complained of resulted from torts alleged to have been committed by the Commissioner and that the State is not liable for the alleged torts of its agents and officers, and that the particular court was without jurisdiction to try and determine an action against the State Highway Commissioner, a public official of the Commonwealth.

Based upon the above reasons the State Highway Commissioner, appearing specially, moved that the action be dismissed.

The plaintiffs demurred to the special plea and motion to dismiss, asserting grounds therefor which, being reduced, present these questions or issues: That objection to the jurisdiction of the court can be raised only by a plea in abatement, and there is no such plea here; that the plea adopted and filed has the legal effect of submitting the parties defendant to the jurisdiction of the court and that the plaintiffs have the right to institute an action to recover for damages to land in any county where the land lies.

The court overruled the plaintiffs' demurrer and motion to strike the defendants' plea and sustained the motion of the State Highway Commissioner to dismiss the action. The plaintiffs then moved the court to dismiss the case as to H. G. Shirley and W. W. McClevy as individuals.

A number of interesting questions are raised in the printed briefs and are discussed with learning and ability, and, while they are of serious import, only one, we think need be considered because its determination is conclusive of the case. This question is stated in the brief of the Commonwealth as follows: "May a landowner maintain an action at law in any court against the State for damages to his land resulting from negligent and tortious acts of the officers and employees of the State Department of Highways committed in connection with the construction of the highways?"

It is perfectly patent that the action under consideration is such an one as is contemplated by the question. The notice of motion expressly charges the Highway Commissioner with the commission of negligent and unlawful acts, in violation of law and of his duty as an officer of the State. This is accentuated by the fact that H. G. Shirley and W. W. McClevy, who were originally impleaded as defendants, were dismissed, as individuals, at the instance of the plaintiffs. There can be no mistake as to the character of the identity of the remaining defendant. It is the State Highway Commissioner, an official of the government of the State of Virginia. His official relationship, as an agent, would fix liability, if any there be, upon his principal, the State, but for the fact that the acts relied upon to create such liability, were wrongful, unlawful, negligent, and tortious.

It has long been settled that a state cannot be sued without its consent, in any event. That finds its origin in what may be termed a legal tradition. By stronger reasoning is it true that the State is immune from suability on account of the torts of its agents and officials. Nowhere have we seen this more aptly and tersely stated than in the work entitled A Treatise on the Law of Torts (Bohlen and Harper), page 665, section 297:

"Neither the United States nor one of the States can be sued without its consent. The origin of this doctrine, it seems was the personal immunity of the Crown in English legal and political theory. Later, when the more complicated theory of the 'state' replaced the concept of the individual 'sovereign, ' the nonsuability of the government was an attribute inherited from the older order. Like many other historic anomalies, it has caused much embarrassment in the modern social and legal structure.

"But the immunity of the state for the tort of its servants and agents does not rest entirely upon the fact that the state can not be sued. It is said to rest on public policy, the incongruity of a 'wrong' by the state, and upon dubious grounds of the law of agency whereby an agent of the state is always regarded as acting outside the scope of his...