Terrell County v. York , 127 Ga. 166 ( 1906 )

Cobb, P. J.

(After stating the facts.) The general rule is that a county is not liable to suit unless there is a-law which, in express terms or by necessary implication, so declares. Millwood v. DeKalb County, 106 Ga. 743, and cit. The constitution provides that private property shall not be taken or damaged for public use without just compensation being first paid. The county authorities have power, under certain circumstances, to take and damage property of the private citizens for the benefit of the public; and whenever damage results to the owner of private property from the action of such county authorities, a right of action arises in favor of the property owner, which may be enforced by suit against the county. Barfield v. Macon County, 109 Ga. 386. But it is essential to the'maintenance of such a suit that it should appear that the acts complained of, which had the effect of taking or damaging the property, were the acts of the constituted county authorities, or, if not performed in the first instance under the sanction of such authorities, that the county, authorities have ratified and approved the act of those assuming to represent them. The county authorities are not liable for the acts of a road overseer, or of a superintendent of roads, employed under the provisions of the. alternative road laws, unless such road overseer or superintendent was acting under the authority of the ordinary or county commissioners, or the act of such road overseer or superintendent, in excess of his authority, was thereafter approved by such ordinary or county commissioners. County of Bibb v. Reese, 115 Ga. 346.

The petition alleged that the land was appropriated by Hatcher and the county authorities, and that Hatcher and the county authorities did the various acts complained of. While the allegations were not as clear and as definite as they might have been, they were sufficient to show it was the intention of the pleader to charge that the wrongs complained of were committed by the county authorities, and that Hatcher was acting under their control and direction. Similar allegations were held sufficient in the case of Barfield v. Macon County, 109, Ga. 386. In Westbrook v. Baldwin County, 121 Ga. 442, it was held that evidence that the work complained of was- done by laborers under the direction of one to whom the county commissioners had given general authority to improve the roads, and who had entire authority over the roads, and who conferred with the county commissioners frequently, was sufficient to withstand a nonsuit upon the ground that there was no evidence that the work had been done under the authority of the county commissioners. So far, therefore, as the petition alleged that a portion of the plaintiff’s land had been actually taken by the county authorities, a cause of action was set forth which would authorize'a recovery of damages against the county for the market value of the land so taken.

What has been said in reference to the taking of the land is also applicable to those allegations of the petition which relate to the ditches along the side of the road, which are alleged as a cause of action; that is to say, that under the allegations of the petition the plaintiff would be entitled to recover the value of the land which the county has appropriated, and any diminution of the market value of her remaining property brought about by the work necessary to increase the width of the public road.

But it is contended that no liability rests upon the county, growing out of the alteration of the public road, unless it appears that the road has been altered in accordance with the provisions of the Political Code, § 520 et seq., relating to application, publication, etc. These sections deal with the subject of laying out new roads •and altering old roads. It is to be noted that § 523 declares that public roads, established without a substantial compliance with these provisions, are void; but there is no such provision in reference to the alteration of public roads. In Fulton County v. Amorous, 89 Ga. 614, it was held that the county was liable to a property owner for the land taken and used for a public road, notwithstanding the quantity so taken was in excess of that contemplated by the order providing lor the alteration in the road, when it did not appear that the road, as completed, was wider than the public necessity required, or than the county authorities, under a proper order, might have made. This ruling was followed in Fulton County v. Phillips, 91 Ga. 65. If the county is liable for land taken in excess of that provided for in an order passed under the authority of the sections of the code above referred toj it would seem that,' for an equal reason, it would be liable for land taken in the absence of any specific order providing for the widening of the road. There was no error in overruling the general demurrer; but the special demurrers should have been so far sustained as to strike from the petition the allegations relating to the appropriation of the land actually taken, and the diminution in the market value of the plaintiff’s remaining property, resulting from the alteration of the public road. Roughton v. Atlanta, 113 Ga. 948.

Judgment affirmed, with direction.

All the Justices concur.