Rainey v. Hinds County , 78 Miss. 308 ( 1900 )

Terral, J.,

delivered the opinion of the court.

It seems to be settled in this* state that a county is not ordinarily liable to suit except in cases provided for 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. The only question before us is whether the declaration states a cause of action against Hinds county. A county, with us, has certain prerogatives and judicial powers, and with respect to the exercise of such powers it may not ordinarily be sued. But a county is also, for many purposes, a corporation. It is a political entity distinct from the several inhabitants that compose it, and a judgment against it is not levied, as at common law, upon the property of a single individual (Russell v. Devon Co., 2 Term R., 667), but is paid by a tax levied upon all the taxable property of the county, in conformity with law. Our laws provide that a county may hold property, may sue and be sued, etc.; and in these respects it is a corporation, or at least is clothed with corporate functions in relation to such subjects. It is expressly provided in the constitution of the state (section 17) that “ private property shall not be taken or damaged for public use except on due compensation being first made to the owner thereof. ” Except on compensation first made, private property shall not be taken by whom ? Manifestly, neither by the state nor any subdivision of it, nor by any corporation or agency created by legislative authority. To these authorities the constitution especially speaks, and its mandate may not be unheeded or disregarded by them, for against invasion of private property by all others the common law is a sufficient protection. Our statute in relation to roads (chapter 117, code 1892) provides for the erection of causeways, the cutting down of hills, and for the making of other conveniences for the use of persons traveling the public highways, and for the damages sustained thereby it provides for payment to be made out of the county treasury. In this case it seems that the public road has long been opened, and that^ the construction of the causeway which has resulted in so much injury to the plaintiff has been recently done, but such fact makes no difference in reference to the remedy.

In Herman v. City of Vicksburg, 72 Miss., 211, s.c. 16 South., 434, it appears that the lots of Herman, when purchased by him, were on a level with the street adjacent to 'them, and that nine years thereafter the city, in making a new grade for the street, made, abutting the property, a deep cut of some fifteen feet, which caused the inconvenience complained of; and it was there held that the making of the cut was a damage not compensated to the plaintiff or to his predecessors in the title to the property when the street was first opened. In respect to the city the right to improve its streets by change of grade was held to be a continuing right, which might be exercised repeatedly according to the needs of the public. In our opinion a county has power, equal to that of a city, to grade and improve its roads to suit the needs of its increasing and advancing population; and, if so, it must exercise the right under like restrictions. That a county has such power seems a reasonable conclusion from the nature and character of the subject-matter, and from the constitutional and statutory provisions of law touching the subject. The full jurisdiction of boards of supervisors over roads is quite a limited power, if, when roads.are once laid out and 'opened, they must forever continue of the same grade and in the same condition; and the power to erect causeways and cut down hills would be of little •consequence if such work could only be done when the roads are first opened. We think the plain provision of the constitution that 1 £ private property shall not be taken or damaged for public use except on due compensation being first made to the owner thereof,” and the equally plain provision of code, § 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 has been held that a county is not liable to suit for the acts of such agents, but the wanton wrong here alleged to have been inflicted upon the plaintiff is also alleged to have been committed by the county. The board of supervisors represent the county. Board v. Niles, 58 Miss., 48; State v. Fortinberry, 54 Miss., 316. And it is authorized by § 3904 to direct what hills are to be cut down or other special work is to be done; and 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 the 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 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 Co. v. Lusk, 77 Miss., 136, s.c. 24 South., 972.

Reversed and remanded.