This is an action of trespass quare clausum fregit by the appellant against the appellee for damages resulting from the acts of the employés of the county in going upon the lands of the plaintiff and taking therefrom soil to be used in the repair of one of the county's public highways.
That a county is liable "for property taken, injured or destroyed" in the construction or enlargement of its highways, by its authority, or under its direction, or by its agents or servants acting within the line and scope of their employment, in an appropriate action and upon proper proof, is not the subject of doubt. Constitution 1901, § 235; Dallas County v. Dillard, 156 Ala. 354, 47 So. 135, 18 L.R.A. (N.S.) 884; Adler v. Pruitt, 169 Ala. 213, 53 So. 315, 32 L.R.A. (N.S.) 889; County of Chester v. Brower, 117 Pa. 647, 12 A. 577, 2 Am. St. Rep. 713; Wendel v. Spokane County, 27 Wn. 121,67 P. 576, 91 Am. St. Rep. 825; 7 R. C. L., p. 954, § 29.
The right to compensation in such cases arises from the mandate of the Constitution that just compensation shall be made "for property taken, injured or destroyed" by the construction or enlargement of the works, highways or improvements, and is visited on municipalities and other corporations, and individuals vested with the privilege of taking property for public use. Birmingham Traction Co. v. B. R. E. Co., 119 Ala. 137, 24 So. 502, 43 L.R.A. 233; E. W. R. R. Co. v. E. T., V. G. R. R. Co., 75 Ala. 280.
Under the doctrine announced in the case of City Delivery Co. v. Henry, 139 Ala. 161, 34 So. 389, and followed in Ex parte L. N. R. R. Co., 83 So. 52,1 Bessemer Coal Co. v. Doak,152 Ala. 166, 44 So. 627, 12 L.R.A. (N.S.) 389, and L. N. R. R. Co. v. Abernathy, 197 Ala. 512, 73 So. 103, when the complaint is in trespass and ascribes the injury to force applied by the defendant, proof of the actual participation on the part of the defendant in the damnifying act is essential to establish a right of recovery, and in this case, while the evidence shows that the road hands in charge of an overseer or foreman committed the trespass, there is nothing in the evidence to authorize the conclusion that the board of revenue and road commissioners of the county participated in, authorized, or directed its agents in committing the trespass, or that it was afterwards recognized as the act of the county or ratified as such. Therefore under these authorities the plaintiff failed to sustain the cause of action as laid in the complaint, and the court correctly rendered a judgment for the defendant.
Affirmed.
1 203 Ala. 328.