
    Covington County v. Watts.
    [82 South. 309,
    Division B.
    No. 20819.]
    1. Constitutional Law. Eminent domain. Highways: Claim for damages due to construction of road. Liability..
    
    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 damage to land which it wrongfully caused to be covered with water by the improper construction of a public causeway.
    2. Same.
    Where the board of supervisors let a contract for road construction in a road district created under Laws 1912, chapter' 145, and approved the plans and specifications and accepted the work as being in accordance with the contract, the county is liable for damages to the owner’s land due to placing a culvert at a height not less than twelve inches above the bottom of- a ■ ditch which was filled up in the construction of the road.
    3. Same.
    .In such case the plain provisions of section 17 of the Constitution and the equally plain provision of Code 1906, section 3894, that the board of supervisors shall allow and pay such damages, justifies a suit by the owner against the county.
    4. Eminent Domain. Damages due to construction of highway. Liability of county or road district.
    
    Although the county board created a separate road district and appointed highway commissioners, the county and not the district is liable for damages if any, due to construction, of a highway in the district, in view of Constitution 1890, section 170, giving boards of supervisors full jurisdictions over roads, and Laws 1912, chapter 145, in conformity with which the road district was created, limiting the powers of the commissioners so that they are not effective until approved by the board of supervisors.
    Appeal from the circuit court of Covington county.
    Hon. W. H. Hughes, Judge.
    Suit by. T. H. Watts against Covington County. From a judgment for plaintiff, the county appeals.
    •The facts are fully stated in the opinion of the court.
    
      
      E. L. Dent, for appellant.
    In the case of Rainey v. Hinds County, 78 Miss. 308, this conrt held: “It seems, to be settled in this state that a county is not ordinarily liable to suits except in cases provided by law. , This exemption is placed upon the ground that a county is a governmental agency, created for local purposes, and in this regard it partakes of the immunity of the state itself.” In this Eainey case, supra, it is further said: “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 agents of the county, but against the county for its own wrongful acts. It has been held that a county is not liable to suit for the acts of such agents.”
    • The case at bar is exactly like the Rainey case, supra, and when this case was again before this court as it appears in 79 Miss. 238, on the competency of the conversation between appellant and Mr. Cranfron, a member of the board of supervisors and the motion for a peremptory, instruction, this court says: “That the bad construction of the causeway was brought to their attention — attention of the board — and they failed to intervene in behalf of the plaintiff, does not render the county liable .for the injury.”
    Upon the authority as announced in this Rainey case, supra, the court should have sustained the motion of-appellant for a peremptory instruction, which motion is in part as follows: See record-page 78. “The defendant is not liable for the filling up of the culvert and thé over-” flowing of plaintiff’s land, if it was overflowed, and that it was the act, if it was improperly put in it, was an act on the part of the agents of the county, for whose acts the county is not’liable.”
    No wanton or' wilful wrong is shown on the part of. the county, and I respectfully submit that the incompetent testimony above referred, to, the refusal of the court to sustain the motion for a peremptory instruction, and the refusal by the court of the instruction as appears in record on page 115 is all again st the law as announced in this Rainey case, supra, and that the action of the court in permitting such testimony over proper objections, and the refusal to grant the peremptory instruction and the instrucion complained of, is such a manifest error that this case should be reversed and remanded, or reversed and a judgment given here for the county appellánt.
    
      McIntosh & Tew and T. W. Cranford for appellees.
    Counsel for appellant cites the case of Rainey v. Hinds County, 78 Miss. 308, which case was before the supreme court again and is reported in 79 Miss. 238, quotes- extracts therefrom and says the case at bar is exactly like this case; with this we concur except the work done in the Rainey case was done by the overseer as it developed in the trial of the cause and referred to by the supreme court in its final decision, hut the court in commenting upon the declaration in the Rainey case when it was first before it on demurrer said on page 314: “The board of supervisors represented the county. Board v. Nile, 58 Miss. -48; State v. Fortenberry, -54 Miss. 316. And it is authorized by section 3904 to direct what hills are to be cut down or other' special work is to be done. The allegations of the declaration in this case carry the idea and are equivalent to the charge that the board of supervisors have directed the making of an embankment here complained of, and which has, it is said, destroyed the beneficial use of a part of plaintiff’s property and created’ a private nuisance, which has rendered his residence unfit for the habitation of himself and family. It is apparent from the statement of the declaration that suitable drains would have saved the infliction of the grievious 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. Lush, 77 Miss. 136. ’ ’ la.
    In the final trial of the Rainey case - as reported in 79 Miss., it developed that the work that was done that caused the damage was done by road overseer not under the special direction of the board of supervisors and was held of course that the county was not liable for his acts. In the case at bar the board of supervisors furnished plans and specifications, profile and blue prints showing exactly the fill to be made, and the size culvert to be placed in fill in appellee’s land, all of which was done by order of board of supervisors in regular session spread upon their minutes, thereby making the act of the contractor the act of the county, whereby it took the private property' or a beneficial interest therein for public use for which a jury said one hundred dollars was due compensation to ■ the owner thereof. After having heard the evidence and the proper instructions of the court, we therefore maintain that the judgment of the court should be affirmed.
   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 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. ’ ’

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 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 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,.  