Arundel Corp. v. Griffin

Whitfield, J. The amended declaration herein, filed by W. D. Griffin and T. M. Griffin, purports to state a *129 cause of action against The Arundel Corporation, a corporation, and the Board of Commissioners of Everglades Drainage District. The first count sets up the particulars of an alleged concerted action and a joint tort by the defendants by causing the plaintiffs’ lands to be overflowed with water (following unusually heavy rainfalls), in negligently prosecuting drainage operations in the Everglades of the State, while the second count contains similar allegations in stating a taking- of the plaintiffs’ lands by such overflow. A demurrer to the declaration was overruled and a demurrer to a plea to the amended declaration was. sustained in a single order. This order is assigned as error upon a writ of error taken by the defendants to a judgment awarding damages to the plaintiffs. If the demurrer to the- declaration should have been sustained, the subsequent proceedings were improper. The real questions presented are whether the Board of Commissioners of Everglades Drainage District may as such Board be sued in tort for the damages alleged, and whether the declaration shows a taking of plaintiffs’ land for public purposes without compensation, the acts complained of having been done under the authority and direction of the Board. Sections 1161, 1162 and 1163, Revised General Statutes of 1920, creating the “Board of Commissioners of Everglades Drainage District,” and defining their powers and duties, are as follows: “1161. The Governor, the Comptroller, the State Treasurer, the Attorney General and the Commissioner of Agriculture of the State of Florida, and their successors in office, are hereby, constituted the governing board of said district, and shall be designated the ‘ Board of Commissioners of Everglades Drainage District,’ with all the powers of a body corporate, including the power to sue and be sued by said-name in any court of law or equity, to make *130 contracts and to adopt and use a common seal and alter the same at pleasure, to hold, buy and convey such personal or real property as may be necessary to carry out the purposes of this article, to appoint such agents and employees as the business of the Board may require, and to borrow money and to issue bonds therefor, as hereinafter provided, to enable the said Board to carry out the provisions of this, article.” “1162. The said Board is hereby authorized and empowered to establish and construct a system of canals, drains, levees, dikes, dams, locks and reservoirs of such dimensions, depth and proportions as in the judgment of the said Board is deemed advisable to drain and reclaim the lands within said drainage district, and to maintain such canals, drains, levees, dikes, dams, locks and reservoirs in such manner as said Board shall deem most advantageous and to carry out such work as in the judgment of the said Board will be advisable for harmonizing such navigation as may be incidental upon the works of drainage, or in connection with the works constructed for drainage purposes; to provide for and regulate the collection of a reasonable schedule of tolls for the use of the said canals and locks, all tolls heretofore collected for the use thereof being by this act legalized and validated; to regulate the speed of all water craft or boats of any kind plying on or using the said canals and waterways; to prescribe regulations for the construction of docks and landings along and bridges , or ferries across the said canals; and to do and perform any and all other acts which in the judgment of the said Board are conducive to the upkeep and betterment of the same. Said Board is hereby authorized and empowered to clean out, straighten, widen, change the course and flow, alter or deepen any ditch, drain, river, water course, pond, lake, creek or natural stream in or out of said district that may be deemed necessary by said board to be done to facilitate *131 the drainage and reclamation of the territory in said district ; to construct and maintain main and lateral canals or ditches; to construct such levees, dikes, sluices, revertments, reservoirs, pumping stations and other works and improvements deemed necessary to preserve and maintain the works in said district; to construct any bridge or roadway over any levees, embankments, public highways, railroad right-of-way, track, grade, fill or cut, or across any stream or pond that may be necessary to facilitate the work of draining and reclaiming the territory or any part thereof embraced in said district; said board shall have the power and authority to hold, control and acquire by donation or purchase for the use of the district, any real or personal property, to condemn any lands, easement, railroad right-of-way, in or out of said district, for a right-of-way for any canal, ditch, drain or reservoir, or for material to be used in constructing and maintaining said works and improvements for draining, protecting and reclaiming the lands in said district.” “1163. That the said Board is hereby authorized and empowered to exercise the right of. eminent domain, and may condemn for the use of said district any and all lands, easements, rights-of-way, riparian rights and property rights of every description required for the public purposes and powers of said board, as herein granted, and may enter upon, take and use such land as it may deem necessary for such purposes, pending condemnation proceedings.” The “Board” created by the above quoted statute is an agency of the State and the authority conferred upon the Board is exercised for the State and not for a subdivision of the State or for any private purpose or company. It has been denominated “a public quasi-corporation,” not a quasi-public corporation. Forbes Pioneer Boat Line v. Board of Com’rs. of Everglades Drainage Dist., 77 Fla. 742, 82 South. Rep. 346. *132 The State cannot be sued at all without its consent. 25 R. C. L. 412. A county is not liable in tort for damages, though it has express power to “sue and be sued in the name of the county.” Sec. 1493, Rev. Gen. Stats. 1920; Keggin v. Hillsborough County, 71 Fla. 356, 71 South. Rep. 372; Owen v. Baggett, 77 Fla. 582, 81 South. Rep. 888. In Brumley v. Dorner, 78 Fla. 495, 83 South. Rep. 912, the suit was for an injunction to prevent a permanent injury to land. The “Board” is given “all the powers of a body corporate, including the power to sue and be sued.” .This does not render the Board liable in tort for damages, since the Board is a State agency acting only for the State. 25 R. C. L. 413. If a State cannot be sued without its consent, and a county is not liable in tort for damages, the law certainly does not authorize an action in tort for danu ages against the Board, a State agency, in the absence of a valid statute permitting it that accords with Section 22, Article 3, Constitution. See 19 C. J. 709; L. R. A. 1918B 1010 Notes; 13 A. L. R. 1276 Notes; 44 L. R. A. (N. S.) 189; 36 Cyc. 919; Ann. Cas. 1913E 1038 Notes; 25 C. J. 742. The Board is a State agency created by statute, and it has only a drainage fund that is dependent upon taxation and is required to be used for designated public purposes. The use. of such fund to pay damages for torts is not contemplated by the statute. By making the Board amenable to suit, the statute does not impose liability for a cause of action that is not given by law. The Board, a State agency with limited powers, is not liable for damages in this case under the existing law, even if the injury complained of is consequent upon the general drainage operations of the State and such injury was in fact not proximately caused by flooding from occasional heavy rainfalls to which the entire Everglades section of the State is subject. See Todd v. Kaw Valley Drainage Disk, 109 Kan. 754, 201 Pac. Rep. *133 1096, 33 A. L. R. 64, and Sherwood v. Worth County Drainage Dist., 298 Mo. 82, 250 S. W. Rep. 605, 33 A. L. R. 68. Very material differences are apparent between this case and such cases as Bradbury v. Vandalia Levee & Drainage Dist., 236 Ill. 36, 86 N. E. Rep. 163, 15 Ann. Cas. 904, 19 L. R. A. (N. S.) 991; Bruntmeyer v. Squaw Creek Drainage Dist. No. 1, 196 Mo. App. 360, 194 S. W. Rep. 748; Croft v. Millard County Drainage Dist. No. 1, 59 Utah 121, 202 Pac. Rep. 539; Bunting v. Oak Creek Drainage Dist., 99 Neb. 843, 157 N. W. Rep. 1028, and Hodges v. Hall, 172 N. C. 29, 89 S. E. Rep. 802. In these and other similar cases the districts are organized by the land owners for the purpose of improving and reclaiming their lands. In this ease the State constituted its officers as drainage commissioners with the powers of a public quasi-corporation to drain vast areas of public and private lands as a State undertaking for general public purposes. See 9 R. C. L. 650. It does not appear that the plaintiffs’ property was physically invaded, or that it was appropriated or permanently overflowed by the acts complained of. The Florida Constitution provides: “Nor shall private property be taken without just compensation.” Sec. 12, Declaration of Rights. Unlike provisions in other States, the Florida Constitution does not expressly forbid “damage” to property without just compensation. Selden v. City of Jacksonville, 28 Fla. 558, 10 South. Rep. 457. See Richardson v. Levee Commrs., — Miss. —, 19 South. Rep. 351. Such cases as 106 U. S. 196. and 167 U. S. 204, are not applicable here. The lands alleged to have been tortiously flooded are in a vast area of low lands known as swamp and overflowed lands, and their location make them peculiarly subject to heavy and continued overflow in unusual rainfalls; and the plaintiffs acquired and hold them with the knowledge that *134 an extensive system of drainage operations is necessary to permanently reclaim the lands for settlement and cultivation, that such extensive operations are being conducted by the State through the agency of State officials under statutory authority, that the rights and remedies of lands owners and occupants in the large area covered by State drainage projects are such as the law affords in the premises, and that the Constitution of the State provides that “all courts in this State shall be open, so that every person for any injury done him in his lands, goods, person or reputation shall have remedy, by due course of law.” See. 4,-Dec-laration of Rights. In this case “due course of law” does not afford the plaintiffs the remedy- sought, because, in the absence of valid statutory authority, an action in tort for damages does not lie against a State agency engaged in performing a public function for the State, and the injury complained of is not a taking or an appropriation of property for public purposes within the intent and meaning of the Constitution. The declaration does not allege an actionable tort against the defendants either jointly or severally, and the demurrer thereto should have been sustained. See Wood v. Drainage Dist. No. 2 of Conway County, 110 Ark. 416, 161 S. W. Rep. 1057; 298 Fed. Rep. 553. Reversed. Taylor, C. J., and Ellis and Browne, J. J., and Gibbs, Circuit Judge, concur. Terrell, J., disqualified.