Finnell v. Pitts

*292 FOSTER, J. The plaintiff owns, as the complaint shows, one hundred and eighty-five acres of farm land, and appellants, as highway commissioners of the state, are alleged to have built a state highway near it, and in doing so, a high embankment was constructed across a stream which drained a lake, and thereby diverted the waters from its natural flow, and caused them to flow upon and over plaintiff’s land, submerging thirty acres, permanently injuring and destroying its value, and that the whole of the tract was depreciated in value, and that there has been no compensation paid him. Appellants claim immunity as state officers, in the exercise of good faith, without negligence or want of engineering skill. The complaint claims damages both for submerging and destroying the value of thirty acres out of the whole, and thereby and in addition thereto for depreciating the value of the whole. The court gave to the jury the following written charge at the instance of plaintiff: “If you find for the plaintiff then the measure of plaintiff’s recovery is the difference between the market value of the whole of his farm immediately before and after the injury proximately caused by the injury.” Also in his general charge he instructed them that they were dealing with the whole tract of one hundred and eighty-five acres, and not alone with that flooded. Exception was taken to this. The court also in his rulings throughout, relating to the pleadings and his given charges and oral charge, tried the case on the theory that because the officers were acting as such, in an ordinary careful and skillful manner in good faith, for the state in the construction of its public works, that was no excuse for their conduct which caused such damage — that it was no excuse for the dam-ii ge occasioned by submerging the thirty acres or for damage thereby to the balance of the farm and consequentially affected in value. We find ourselves in agreement with the circuit court, in respect to the rulings indicated. Just compensation for taking property is not confined to payment for that which is takén. The compensation contemplated by section 23 of the Constitution extends to the damage to the tract of which that which is taken is a part, if there is such damage. This is not in the nature of consequential damage under section 235, which results from the construction or enlargement of works, highways, or improvements. Without the latter constitutional provision there was no remedy for consequential damages unless there was a taking. Under that provision, there is such a liability though there is no taking when the damage results consequentially from such improvements. But that section does not apply to the state. Duy v. Alabama Western Ry. Co., 175 Ala. 162, 57 So. 724, Ann. Cas. 1914C, 1119. So that the state is not due anything under that provision, and therefore owes nothing for consequential damages when there is no taking. But irrespective of section 235 the damage for a taking, which results to the whole tract, is due by the state, as well as by others, under section 23 of the Constitution. Hooper v. S. & M. R. R. Co., 69 Ala. 529; Jones v. N. O. & S. R. R. Co., 70 Ala. 232; City Council v. Townsend, 80 Ala. 489, 2 So. 155, 60 Am. Rep. 112; City Council of Montgomery v. Maddox, 89 Ala. 181, 7 So. 433; Duy v. Alabama Western Ry. Co., 175 Ala. 162, 57 So. 724, Ann. Cas. 1914C, 1119; Hamilton v. Ala. Power Co., 195 Ala. 438, 70 So. 737; U. S. v. Grizzard, 219 U. S. 180, 31 S. Ct. 162, 55 L. Ed. 165, 31 L. R. A. (N. S.) 1135; Campbell v. U. S., 266 U. S. 368, 45 S. Ct. 115, 69 L. Ed. 328; Sharp v. U. S., 191 U. S. 341, 24 S. Ct. 114, 48 D. Ed. 211; U. S. v. Archer, 241 U. S. 119, 36 S. Ct. 521, 60 L. Ed. 918. We also think that this suit does not violate the constitutional prohibition against suing the state. For though the state cannot be sued (section 14, Constitution), its immunity from suit does not relieve the officers of the state from their responsibility for an illegal trespass or tort on the rights of an individual, even though they act pursuant to authority attempted to be conferred by the state. Elmore v. Fields, 153 Ala. 345, 45 So. 66; 25 R. C. L. 414; 36 Cyc. 917; Hopkins v. Clemson College, 221 U. S. 636, 31 S. Ct. 654, 55 L. Ed. 890, 35 L. R. A. (N. S.) 243. For when the state officers take private property though they apply it to a public use, a ’tort has been committed by them. Private property rights have been thereby unlawfully disturbed by them. We believe that the rule is universal that an agent is not excused from personal liability for a tort which he commits for and in the name of his principal, whether the principal is liable to suit or not. The decisions of this court and the authorities generally apply that principle to, *293 torts 'committed by state officers in the name of the state and on account of the state’s public affairs. Elmore v. Fields, 153 Ala. 345, 45 So. 66; Hopkins v. Glemson College, supra. An individual cannot justify a tort on a contention that it is for the state, if the state had no such right. If the state had the right, then its officers, acting by its authority, were justified. The officers cannot be justified upon a mistaken notion of state authority. An inadvertent tort-feasor is such, though he may not be liable to the amount of damages as a willful tort-feasor would be. The question now being discussed is not the extent of liability, but the fact of liability vel non. If in the promotion of the state’s business its officers without authority of law apply private property to the state’s enterprises, they are guilty of the same nature of wrong, as if they were acting as agents of a private corporation. The wrong is that of the officers personally as well as that of their principal. The officers are sued, not because the state has committed a wrong, but because they personally, though acting as officers, have done so. When a person commits a tort, it is wholly immaterial upon the question of his liability, whether he was acting officially or personally. The further important question, therefore, is whether the act of causing thirty acres' of plaintiff’s land to be submerged as a direct result of the highway construction, of which complaint is made, is a taking of private property for the state highway, or its application to such use for which just compensation is due under section 23 of the Constitution. It appears that the claim is that plaintiff’s land is made to catch and hold water occasioned by the construction of the highway. Drainage rights are specifically made subject to condemnation for this purpose. Acts of August 23, 1927, § 32 (Acts 1927, pp. 348, 358, 359). What is the difference in this respect between covering land with water or with earth, thereby rendering it unfit for use by the owner? What effect on the question has its location, as respects its distance from the road, if the result is direct? There is no difference of opinion, but that water backed into a pond by a dam causes the land so flooded to be taken for-the uses of the dam — a taking of such land, though far distant. The same is true though the water does not actually cover the land but makes it boggy and .too wet for profitable use. This would be a direct result, and would be an application of the land thus affected to the use of the enterprise. This land is caused to hold water made to flow on it, just as land may be caused to hold earth cast upon it in the construction. The authorities fully sustain the view that submergence of the nature described in the complaint and evidence in this case is a taking. U. S. v. Lynah, 188 U. S. 455, 23 S. Ct. 349, 47 L. Ed. 539; Pumpelly v. Green Bay & M. C. Co., 13 Wall. 166, 20 L. Ed. 557; Peabody v. U. S., 231 U. S. 530, 34 S. Ct. 159, 58 L. Ed. 351; U. S. v. Cress, 243 U. S. 316, 37 S. Ct. 380, 61 L. Ed. 746; Horstmann v. U. S., 257 U. S. 138, 42 S. Ct. 58, 66 L. Ed. 171; U. S. v. Grizzard, 219 U. S. 180, 31 S. Ct. 162, 55 L. Ed. 165, 31 L. R. A. (N. S.) 1135. It is also claimed that the overflow and submergence of the thirty acres could not have been foreseen or foretold, and therefore that the result is consequential and not direct. And it is argued that the appellants here took over the work after it was begun, and that to sustain this suit would be unjust to them. But we cannot agree with either conclusion, for they, as competent engineers, in taking over the uncompleted construction, could have rechecked the engineering work, and have discovered for theinselves if the consequences of which complaint is here made would follow, and have made such additional surveys as were necessary to that end. They ccfald know what the consequences would be the same as those who began the work. We see no justification in law for continuing the completion of a work whose effect was to take private property. The legal consequences are controlled by their individual connection wjth the work. Whether the Governor, contractor, employes, and others' may be liable is beside the question. They may be, so far as this question is concerned, dependent upon their personal connection with the transaction. It is not for us to say or .surmise why the consequences to plaintiff were not properly planned and cared for as well as the right of way. If the highway department constructs a road on one’s land without a permit, and without paying just compensation, those who plan and construct the work are liable, and not exempt by reason of their official or contractual connection. The nature of such relation to the transaction is of no concern as affecting the principle of liability, provided there was such participation as to make one otherwise liable for the tort. We find no reversible error in the record, and the rehearing is granted, the original opinion of the majority is withdrawn, and the foregoing is substituted for it. Rehearing granted. Judgment of reversal set aside, and affirmed. ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur. THOMAS, BOUBDIN, and BROWN, JJ., dissent.