Almand v. Board of Drainage Commissioners

Harwell, J. (Aftér stating the foregoing facts.) The Court of Appeals asked for instructions from the Supreme Court upon the following questions: “The Board of Drainage Commissioners of Haynes Creek District was duly created a body corporate under and by virtue of the provisions of the act of 1911 (Acts 1911, pp. 108 to 132, inclusive; Park’s Annotated Code, §§ 439 (a) et seq.) A, not. a petitioner for the creation of such drainage district, owns land within the district, and is served with a°summons as required by the act (Park’s Annotated Code, § 439 (b)). No. damages are awarded Him-- by the engineer and the viewers; and' no appeal is taken. by him to their report, as provided in the act. The district is duly established in strict compliance with the provisions' of the' act.". . “1. In such case may A prosecute his common-law action on the ease for the value of his land taken, and for any inconvenience imposed, because of the construction of the- improvements by the board of drainage- commissioners, after the district has been- established, laid out, and the improvements completed, or are the. remedies provided in-the-act exclusive of all other remedies? [746] “2. In such case may A maintain against the board of drainage commissioners, as a body corporate, an action for damages, for the negligent'construction by the board of drainage commissioners of the improvements authorized to be made by it, where his lands lying within and without the drainage district have been damaged by acts of negligence and negligent omissions on the part of the board and its contractor in making the improvements in the district?” The answer of the Supreme Court (the headnotes only being given here) was as follows “1. A drainage district laid out, established, and incorporated under the act of 1911 (Acts 1911, pp. 108-132, Park’s Ann. Code, § 439 (a) et seq.) is hot liable in a common-law. action to one owning land within the district, for the value of his land taken, or for inconvenience imposed thereon by the construction of improvements after they have been completed, where the provisions of the act have been strictly complied with, and where such landowner has been served and made a party to the proceeding to establish such district, and has failed to appeal, as provided by the act, from the report of the engineer and viewers finding that his lands will not be damaged by the construction of the improvements. • In such case -the remedy provided in the act is exclusive. “2. The act of 1911, authorizing the establishment and incorporation of drainage districts, is referable to the police power of the State. Such districts, when established and incorporated, are governmental agencies, with limited powers conferred upon them for the public benefit, and may not be held liable for the negligent acts of their officers and agents in the discharge of a governmental function, unless made so by statute. “3. ' In so far as the eminent-domain power of the State is conferred upon such drainage districts, the same is merely incidental to the exercise of the powers and duties conferred and enjoined upon them for the public benefit. If, in the non-negligent and proper exercise of powers and performance of duties conferred and enjoined upon them for the public benefit, injury is necessarily inflicted upon private property which amounts to the taking or damaging of such property, within the meaning of the constitution of this State, the owners thereof are entitled to just and adequate compensation, and the drainage districts as such may be held lia [747] ble. Where the injury is the result of an act of negligence of the officer or agent of such drainage district, liability as against the corporation does not exist.” 147 Ga. 532 (94 S. E. 1028). It appearing, from the allegations of the petition, that the damages complained of arose from the construction of the ditch, and that they were all caused by, its negligent construction, we hold that under the facts as alleged, and the rulings of the Supreme Court as herein stated, the court did not err in sustaining the demurrer and dismissing the petition. Judgment affirmed. Broyles, P. J., and Bloodworth, J., concur.