Washington County v. Humphreys County, No. 21948

No. 21948 | Miss. | Mar 15, 1921

Ethridge, J.,

delivered the opinion of the court.

Washington county sued Humphreys county, setting forth: That a suit had been filed against Washington county by one Duggan for damage to a place of Duggan by constructing a public- highway through his premises, and had recovered a judgment for five thousand, and fifty-six dollars and fifty cents -against Washington county. That prior to the creation of Humphreys county Washington county had established a highway district for Washington county for the construction of a road from Areola, Miss., to Belzoni, Miss. Under the said proceedings a contract for the construction of said road iras let, and the work of construction had begun. That Humphreys county was organized about the 1st of June, 1918, and that the work on the highway had been commenced under the contract prior thereto, and was consummated after the organization of Humphreys county. That under the act creating Humphreys county (Laws, 1918, chapter 348) and the amendments thereto the board of supervisors of Washington county and the board of supervisors of Humphreys county were authorized to make such agreements as they saw proper in reference to the obligations and liabilities of the respective counties relating to roads in the territory formerly embraced in Washington county. That the boards of supervisors of the said counties in' October, 1919, entered into an agreement which stipulates as follows:

“The county of Humphreys assumes all liabilities incident to the road project for the work done subsequent to its organization through that portion of Washington county which was included within the boundaries of Humphreys county, and said Washington county is authorized to alter the plans of Washington County Highway district so as to eliminate from its project that portion of the Arcola-Belzoni road which lies within the confines of Humphreys county; it being agreed and understood that neither Washington county nor the highway commission of Washington county is to construct the highway through Humphreys county originally in the plan if the highway commission of Washington county as approved by the board of super- ■ .iSoro of said county.”

That this was thereafter ratified and confirmed by the legislature of the state in chapter 581, Laws of 1920, approved March 15, 1920. The exhibit to the declaration states the damage by items as follows:

1. Value of land taken for public road........$ 909.00

2. Damage caused by water ponding on orchard and destroying 12 peach trees........... 600.00

3. Damage caused by water ponding in yard and adjacent land of plaintiff, causing same to stagnate and breed mosquitoes, and drowning poultry, etc........................ 1,000.00

4. Damage caused by cutting plaintiff off from pasture and destroying fence............ 100.00

Plaintiff’s additional expense in driving his cattle across road...................... 500.00

5. Cutting down, destroying, or damaging crops. 587,50

6. Damage resulting from cutting fences and leaving openings across road, causing stock to depredate in crops and keeping stock inclosed ................................ 500.00

7. Damage resulting in causing ditches to fill up and preventing cultivation of 12 acres.____ 960.00

$5,056.50

The declaration was demurred to on nine grounds, which it will not be necessary to set out. The demurrer was sustained, and plaintiff declined to plead further, and the cáse was dismissed, from which judgment this appeal is prosecuted.

Chapter 349, Laws of 1918, amending section 10 of chapter 348, Laws of 1918, provides that Humphreys county shall assume such proportionate part of the bonded indebtedness of any road district in any of the counties from whose territory Humphreys county was created, and shall be entitled to receive proportionate part of the moneys belonging to the said counties, etc., and provides:

“Provided, however, that the board of supervisors, of Washington county and the board of supervisors of'Humphreys county, if said Humphreys county is organized, are hereby authorized to make such contracts and agreements with each other with reference to the road districts now in said Washington county as they may deem advisable.”

Acting under this provision, an agreement was entered ‘as stated, wherby Humphreys county assumed all liabilities incident to laying out the road 'involved in this suit so far as the road lay within Humphreys county, and it was provided that Washington county should reorganize its road district so as to exclude a part of the road district in Humphreys county therefrom and that Washington county would pay off the bond issue and would retain the proceeds of the bond issue. As above stated, the agreement was ratified by the legislature of 1920 by chapter 581, Laws of 1920. The demurrer was sustained, evidently upon the theory that Duggan should have brought his suit against Humphreys county and not against Washington county. Inasmuch as the road was laid out by Washington county and the trespass upon the property of Duggan originated with Washington county, we think it wag optional with Duggan to sue Washington county or Humphreys county, and, as he elected to sue Washington county and recovered judgment against it, Washington county became entitled, under' its agreement with Humphreys county and by virtue of its having satisfied Duggan for his injury, to sue Humphreys county for the amount of.damage involved to the said plantation. Humphreys county is not precluded from contesting the amount of the liability, and the. itemized statement of damages filed does not follow the proper rule. The measure of damages in such cáse is the difference in the Value of the land immediately before the taking and its value immediately after the taking, plus the value of the strip actually taken, plus the loss of crops by reason of the taking and work during the year of construction. Washington county did not, so far as the record shows, notify Humphreys county of the pendency of the suit, and demand that Humphreys county defend the' litigation, and therefore Humphreys county will not be precluded from contesting the amount of actual damages in the present suit. The agreement between the two counties ratified by the legislature clearly imposed liability, in our opinion, not only for the construction work or contract price, but also damages resulting to property owners from acquiring the right of way and for damages caused in so doing.

The judgment will be reversed and the case remanded for a trial on the merits in accordance with this opinion.

Reversed and remanded.