Davis v. Lamar County

66 So. 210 | Miss. | 1914

Cook, J.,

delivered the opinion of the court.

This suit was begun in the circuit court by appellant against the board of supervisors of Lamar county. The declaration avers that the road contractor, acting under the orders of the board of supervisors, departed from the well-defined limits of the public road, and appropriated a part of the lands of appellant, and destroyed the shade trees growing on appellant’s land. The declaration seeks to recover the value of the land so appropriated, together with damages for the destruction of the shade trees. The board of supervisors, appellee here, demurred to the declaration, the trial court sustained the demurrer, and plaintiff appeals.

One of the grounds of demurrer is as follows:

‘ ‘ Said declaration fails to aver or allege that the claim upon which the cause of action is founded was ever presented to the board of supervisors as required by statute, to wit, section 311, Code of 1906, and by said board rejected. ’ ’

The question for decision is: Was the canse of action a claim which the statute requires shall be presented for allowance before a suit can be maintained for its recovery? We think section 311, Code of 1906, requires all claims against the county, whether based upon torts or contracts, whether the damages claimed are liquidated or unliquidated, must be first presented to the board of supervisors before the claimant can appeal to the courts. The county must have official notice of the claim, and a chance to adjust same was evidently the legislative intent as expressed in the statute.

- There is some conflict in the decisions of the courts of other states construing similar statutes. No decision of the question here presented has been rendered by this court. In Barrett v. City of Mobile, 129 Ala. 179, 30 So. 36, 87 Am. St. Rep. 54, interpreting a statute similar to our own, it is said:

‘ ‘ The legislative intention was to protect the city from expenses of unnecessary litigation by affording it opportunity to settle and discharge its liabilities without suit. The same necessity exists for such protection in respect to torts as in other claims.”

Affirmed.