Covington County v. Watts

Etheidgb, J., delivered' the opinion of the court. The appellee brought suit against Covington county for damage to eleven acres of land owned by him in the said county through which a public road ran. The board of supervisors made a road district in conformity to chapter 145, Laws of 1912, and issued bonds in accordance with the said law and appointed road commissioners as therein provided. The said road commissioners employed an engineer to draw the plans and specifications for working the road in question, which [432] plans and specifications were approved by the road coih-missioners and the hoard of supervisors, and a contract let for working the said road which involved cutting down the grade of hills, and filling in hollows- and low places so as to level the road. In filling in across a ditch which crossed the road from plaintiff’s, place the ditch was filled up, and a culvert placed, at a height q not.less than twelve inches above where the bottom of the ditch formerly went, which construction caused the waters to be impounded to a height of twelve inches over certain of plaintiff’s land. Plaintiff presented a claim for damages to the board of supervisors, which board disallowed the claim, and this suit was filed in the circuit court for damages in the sum of one thousand dollars, and a verdict was rendered and judgment ‘entered for one hundred dollars from which judgment' the county appeals. We 'deem it necessary to discuss only one of the assignments of error, which is that the court erred in not sustaining the motion for a peremptory instruction for the defendant.- It is contended by the ’county that the case at bar is governed by the announcement by this court in Rainey v. Hinds County, 79 Miss. 238, 30 So. 636, where this court held that a county is not liable to one whose property is damaged by the negligent or tor.tuous construction of a causeway by a road overseer in the absence of directions from the board of supervisors as to how it shopld be made. In that case, the court held the county was not liable because the overseer was constructing the causeway in question on his own initiative and not under the direction of the board of supervisors; the court saying: “But the negligent or wrongful construction of the causeway, if taken to be proven, was the work solely of the road overseer. • The board of supervisors gave no directions as to how the causeway should be constructed and are not culpable in that regard. ’ ’ [433] In the present case, the board of supervisors had approved the plans and specifications for the road work,, and had let the contract for snch work and accepted the work as being, in accordance with the contract. So in the present case the work was done at the instance and on the direction of the board of supervisors. . It is provided in section 17 of the state Constitution. that: “Private property shall not be taken or damaged for public use, except on due • compensation being first made to the owner or owners thereof, 'in a manner to be prescribéd by law, ’ ’ etc. Section 24 of the state Constitution provides that: “All courts shall be open; and every person for' an injury done him in his lands . . . shall have remedy by due course of law,” etc. Section 309, Code of 1906, section 3682, Hemingway’s Code, provides: “Any county may sue and be sued by its name, and suits against the county may be instituted in any court having jurisdiction of the amount sitting at the county site, ’ ’ etc. Section 311, Code of 1906, section 3684, Hemingway’s Code, provides: “A person having a just claim against ány county shall first present the same to the board of supervisors thereof for allowance; and, if the board shall refuse to allow it, may appeal from the judgment of the board to the circuit court, or may bring suit against the county,” etc. In the case of Rainey v. Hinds County, 78 Miss. 308, 28 So. 875, which was the first appeal to this court of the case relied on by the appellant, this court held that under section 17 of the Constitution of 1890, providing that “private property shall not be taken or damaged for public use, except on due compensation,being first made to "the owner,” a county is. liable to the owner for damages to land which it wrongfully caused to be covered with water by the improper construction of a [434] public causeway. At page 315 of 78 Miss., at page 876 of 28 So., this court said: “We think the plain provision of the Constitution that ‘private property shall not be taken or damaged for public use except on due compensation being first made to the owner thereof,’ and equally plain provision of Code, section 3894, that the board of supervisors shall allow and pay such .damages, justifies the suit brought herein. It will be noted that this is not a suit against the- county because of injurious acts committed, by a road overseer, contractor of works, or other agent of the county, but against the county for its own wrongful acts. . . . It is apparent from the statement of the declaration that suitable drains would have saved the infliction of the grievous wrongs complained of, and we reasonably suppose that, if such wrongs had been committed by a road overseer, the. law would not leave the plaintiff without redress; and, as against the defendant below, we think the plaintiff has brought himself within the letter and spirit of our Constitution and statute upon the subject. See, also, Copiah County v. Lusk, 77 Miss. 136, 24 So. 972.” We think that the case at bar comes within the case just quoted from and that the county was liable for the injury inflicted. It- is insisted, as an additional reason for a peremptory instruction for. the county that the board created. a separate road district, and the board had appointed highway commissioners under the supervision of a compétent engineer, and if there, was any liability it was against the district and not against the county as a whole. It will be noted from a careful reading of chapter 145 that the powers of the commissioners are limited and are not effective until approved by the board, of supervisors. The district can only be created, and each step in its creation and operation must be approved, by the board of supervisors, and under the Constitution of the state, section one [435] hundred and seventy, the hoard of supervisors have full jurisdiction over road, ferries, and bridges, to be exercised in accordance with rules to be prescribed by law. It may be that the board when the judgment is made final will draw the warrant upon the road funds of the said district; but, he that as it may, the question is not here presented and can be decided when properly presented. We are satisfied that the judgment of the court below was correct, and it is, accordingly, affirmed. Affirmed,.