Stephens v. Beaver Dam Drainage Dist.

86 So. 641 | Miss. | 1920

Smith, C. J.,

delivered the opinion of the court.

This is an appeal from a judgment sustaining a demurrer to a declaration in an action of tort instituted in the court below by the appellant against the appellee, a drainage district organized and governed by the provisions of chapter 195, Laws of 1912, as amended by chapter 269, Laws of 1914, to recover damages alleged to have been sustained by him because of the appellee’s negligence in so digging one of its ditches as to cause the water to run the wrong way and to collect and pond on the appellant’s land.

It does not appear from the declaration whether the negligence complained of was that of the drainage commissioners or of the persons by whom, the ditch in question was actually dug; but that fact is not material, for the reason that, in the absence of a valid statute imposing liability therefor, a public corporation created in invitum for the purpose of discharging a public function is not liable for the negligence of its officers, agents, or employees. Brabham v. Board of Supervisors, 54 Miss. 363, 28 Am. Rep. 352; Nugent v. Board of Levee Commissioners, 58 Miss. 197. It is true that drainage districts can be organized under the statute here in question only on the petition of a certain per cent, of the landowners; nevertheless they are involuntary corporations for the reason that they can be organized, not only without the consent of all of the landowners therein, but over the actual protest of a part of them.

The provision of section 17 of our state Constitution that “private property shall not be . . . damaged for public use, except on due compensation being first made to the owner or owners thereof, in a manner to be prescribed by law,” so greatly relied on by counsel for the appellant, changed the rule which] existed pfrior to its adoption that a landowner was without remedy for any damage inflicted on his land for the public good (King v. Railway Co., 88 Miss. 456, 42 So. 204, 6 L. R. A. [N. S.] 1086, 117 Am. St. Rep. 749; Williams v. Light & Railway Co., 110 Miss. 174, 69 So. 596), but has no bearing on the liability vel non of a corporation for the unauthorized acts of its officers and agents, which liability must still be determined by the rules of the common law as modified by statute. This section of the Constitution was complied with by the legislature in enacting the statute here in question by the provision therein for the assessment and payment of “all damages that will accrue to any landowner by reason of the proposed improvement,” which provision does not contemplate the allowance of compensation of damages resulting from negligence, but for such only as will result from the proper construction of the proposed improvement. Wood v. Drainage District, 110 Ark. 416, 161 S. W. 1057. The cases cited by counsel for the appellant wherein this court has held a county liable for the acts of its board of supervisors are not here in point, for the reason that in each of them the decision was based on liability.

Affirmed.