
    HARRIS COUNTY v. GERHART et al.
    (No. 3914.)
    (Supreme Court of Texas.
    May 5, 1926.)
    1. Counties <&wkey;>!46 — No recovery can be had in damages against counties for injuries resulting from negligence of their officers or agents, unless such liability is created fay statute.
    No recovery can be had in damages against counties for injuries resulting from negligence of their officers or agents, unless' such liability is' created by statute, since they were not as a rule liable at common law.
    2. Highways &wkey;>l 15 — Adjacent landowner may recover from county for damage to land caused hy overflow resulting from construction and improvement of public road (Complete Tex. St. 1920, or Vernon’s Sayies’ Ann. Civ. St. 1914, art. 6935 [now Rev. St. 1925, art. 6730]).
    Under Complete Tex. St. 1920, or'Yernon’s Sayies’ Ann. Civ. St. 1914, art. 6935 (now Rev. St. 1925 art. 6730), adjacent landowner may recover from county for damages to land caused by overflow resulting from construction and improvement of public road which was accepted by county, regardless of whether county was negligent.
    3. Highways <&wkey;115 — Adjacent landowner cannot recover from county for damages to health of persons on account of construction or maintenance of public road.
    Adjacent landowner cannot recover from county for damages to health of persons on account of construction or maintenance of public road.
    Error to Court of Civil Appeals of Ninth, Supreme Judicial District.
    Action by Maggie S. Gerhart and others against Harris County. Judgment for defendant was reversed and remanded by the Court of Civil Appeals (244 S. W. 1103), and defendant brings error.
    Judgment of the Court of Civil Appeals affirmed.
    Louis, Campbell &. Nicholson, of Houston, for plaintiff in error.
    • Taliaferro & Sonfield, of Houston, for defendants in error. ,
   PIERSON, J.

Maggie S. Gerhart and others sued Harris county. They alleged that Harris county constructed and improved one of its public roads so as to cause water to back upon, stand upon, and overflow their premises during the years of 1918 and 1919, thereby causing the destruction of certain, crops and of certain property located on the premises, and on account of such condition they were made to suffer sickness, for all of which they, sought to recover damages.

The jury found that on account of the construction and maintenance of the public road as alleged certain property of defendants in error was destroyed. It made a finding as to the value of said property, and also fo'und that the Gerharts had suffered sickness, and assessed the damage therefor. Both sides moved for judgment. The trial court granted the motion of Harris county for judgment, and entered judgment accordingly in favor of the county. Upon appeal, the honorable Court of Civil Appeals for the Ninth Supreme Judicial District Reversed the judgment and remanded the cause to the district court for a new trial. 244 S. W. 1103. A writ of error was granted by this court upon the alleged conflict with the cases of Zavalla County v. Akers (Tex. Civ. App.) 91 S. W. 245, and Siewerssen v. Harris County, 41 Tex. Civ. App. 115, 91 S. W. 333.

After making observations regarding, the pleadings, of defendants in error and the demurrers of plaintiff in error, Harris county, the honorable Court of Civil Appeals held: (a) that the facts of the case raised the issue that the county, in improving its public road and in the discharge of duties imposed by law," had impaired the Gerharts’ drainage, and that issues thus raised made a cause of action against the county; (b) that, if the county had damaged the property of the Gerharts for public use, it rested under the absolute duty of making compensation; (c) that the issue of excessive* rainfall and its effect on the overflow was one of proximate cause and one for the jury, and if raised by the evidence on another trial should be submitted to the jury; (d) that there was testimony sufficient to raise the issue of the damage having been caused by the acts of the navigation district of Buffalo bayou, and that that issue should have been submitted to tbe jury; (e) that tbe testimony of certain witnesses relating to tbe market value of certain crops was inadmissible, and its admission erroneous, as well as that relating to tbe cost of raising, harvesting, and marketing the crops.

After reviewing tbe case, we' are of tbe opinion that tbe holdings) of tbe honorable Court'Of Civil Appeals are correct, and tbe causé was properly remanded for a new trial.

It is well established that at common law counties as a rule are not liable for injuries resulting from tbe negligence of their officers or agents, and no recovery can be bad in damages unless liability be created by statute. Heigel v. Wichita County, 84 Tex. 392, 19 S. W. 562, 31 Am. St. Rep. 63; Nussbaum v. Bell County, 97 Tex. 86, 76 S. W. 430. In tbe latter case tbe court said:

- “Under our Constitution, ‘no person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person.’ Article 1, § 17. Under statutory provisions, property may be taken or damaged by counties for public use in establishing and maintaining, public roads, and the authority thus given embraces the making of ditches and drains.”

This leads us to a consideration and construction of article 6935, Vernon’s Complete Texas Statutes or Vernon’s Sayles’ Ann. Civ. St. 1914 (article 6730, Revised Statutes 1925), and to apply it to tbe facts of this ease. It reads as follows:

“The earth necessary to construct a causeway shall be taken from both sides, so as to make, a drain on each side of such causeway. Whenever it is necessary to drain the water from any public road, the overseer shall cut a ditch for that purpose, having due regard to the natural water flow, and with as, little injury as possible to the adjacent land owner; provided, that in such cases the commissioners’ court shall cause the damages to such premises to be assessed and paid out of the general revenues of the county, and, in case of disagreement between the commissioners’ court and. such owner, the same may be settled by suit as in other cases.”

It should be observed that tbe act provides that tbe earth shall be taken from both sides, and the overseer, in cutting a ditch, shall have due regard to the natural water flow, and shall cause as little damage as possible to the adjacent landowner, and then provides for payment for such damages as may be caused. The application of the statute in regard to such damages so caused is not conditioned upon, and does not depend upon, the issue of negligence. If damage in such case is caused, compensation must be made, as held by the honorable Court of Civil Appeals.

It was agreed in open court that the road, after it had been reconstructed and resurfaced in 1914, was accepted by Harris county. If the road, constructed as it was and maintained as it was, caused the water to back upon land of defendants in error and overflow it, and to destroy or damage their property, the county would be charged with the payment of compensation for such damage.

The case of Zavalla County v. Akers (Tex. Civ. App.) 91 S. W. 245 (January, 1906), was one within the original jurisdiction of the county court and over which this court had no jurisdiction. Therefore the petition for writ of error was dismissed for want of jurisdiction.

Writ of error was denied by this court in the case of Siewerssen v. Harris County, 41 Tex. Civ. App. 115, 91 S. W. 333. While we do not approve the holding in that case relating to liability, of the county for damages alleged to have been caused by so constructing and maintaining the public road as to cause overflow, yet the writ was properly denied on other issues. The jury had found that the water did not overflow the plaintiff’s land in greater quantities than it would have done naturally.

The only direct action of this court upon the issue of law involved here is found in the case of Palo Pinto County v. Gaines (Tex. Civ. App.) 168 S. W. 391, in which writ of error was refused by this court. The facts in that case were identical with those in this case, and the one issue of law was ruled as here, the court citing Voss v. Harris County, 33 Tex. Civ. App. 249, 76 S. W. 600.

Neither does the Constitution nor the statutes authorize a recovery against a county for damages to the health of persons on account of the construction or maintenance of a public road. On another trial the issue of damages for sickness of defendants in error should be eliminated.

The judgment of the trial court was reversed by the honorable Court of Civil Appeals upon the issue above discussed, and the cause was remanded for a new trial upon further grounds relating to pleadings, admission of testimony, measure of damages, failure to submit certain issues, etc.

We find no error in the court’s action in this respect, and its judgment remanding the cause for a new trial should be affirmed, and it is so ordered. 
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